What Happens if I Refuse a Breathalyzer Test in My State?

Police officers use breathalyzers to test for the presence and concentration of alcohol in drivers they suspect of intoxication. A breathalyzer can give police probable cause to arrest you for drunk driving. At the police station, a chemical breath test can be evidence used against you in court to get a DWI conviction.

The penalties for refusing a breath test vary by state. Talk to a local DWI defense lawyer for legal advice about what you should do after an arrest.

Implied Consent Laws: Permission To Test for Alcohol

All 50 states have implied consent laws, which authorize law enforcement to get a chemical test after a drunk driving arrest to use as evidence of the driver’s BAC. In most states, a person is guilty of a DUI/DWI if their blood-alcohol content (BAC) is 0.08 percent or higher.

Implied consent means that anyone who drives a motor vehicle on public roads or highways is legally considered to have given consent to a blood or breath test after a lawful arrest — as long as a police officer has “reasonable grounds” to believe they’re driving under the influence of alcohol.

Implied consent does not mean actual consent. A driver still has the constitutional right to refuse a “search” of their person, including a blood test, unless the police first obtain a warrant from a judge. However, after a test refusal, police officers can quickly get a warrant from a judge to perform a chemical test. With electronic warrants, the process may only take a few minutes. The prosecutor can still get the evidence they need for a drunk driving conviction.

Before you submit to whatever tests the police ask for, understand the difference between an evidentiary breath test and a roadside breath test.

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Difference Between Roadside Test and Evidentiary Breath Test

A preliminary breath test (PBT) uses a handheld device to test a driver’s breath during a traffic stop. This test (also called a Preliminary Alcohol Screening (PAS) test) is not used as evidence against you in your criminal case. Instead, this gives law enforcement officers the probable cause to make an arrest. After an arrest, the evidentiary test is done to get a breath test reading for evidence.

The implied consent laws in most states only apply to the evidentiary chemical test incident to a lawful arrest. They are voluntary in most states, and you can refuse a roadside breath test without penalty. However, refusing even a PBT is an infraction or misdemeanor in some states.

The following states have penalties for refusing a roadside breath test:

Some states require PBT tests for drivers under 21, commercial drivers, or drivers on probation for a prior drunk driving conviction. Talk to a local criminal defense lawyer about what happens when a driver refuses a roadside breath test.

Dealing With a Chemical Revocation

Under implied consent laws, refusal to provide a test also has administrative consequences for your driving privileges. In many states, a blood or breath test refusal results in an automatic one-year license suspension.

After an arrest, the arresting officer will immediately take your license and issue you a temporary permit. You have the right to challenge the one-year license revocation on the grounds that the officer lacked “reasonable grounds” for a DWI charge. This is an administrative process, and you have to go through your Department of Motor Vehicles (DMV). Most states only have a short window during which you can challenge the administrative license suspension.

Barring a successful appeal, your license will remain suspended for one year, even if you are never criminally charged or convicted of DUI or DWI. Some drivers qualify for a Limited Driving Privilege (LDP) license. This license allows you to travel for work or school and certain important matters (such as medical appointments).

You may also qualify for restricted driving privileges with an ignition interlock device (IID). An IID is like a breathalyzer installed in your vehicle. In order to start the vehicle and continue driving, you will have to provide initial and rolling breath tests.

Additional Penalties for a DUI Conviction With Refusal

Many states also have enhanced penalties for refusing a test if you are convicted of a DUI or DWI. Some states have separate criminal charges for refusing a breath test. For example, it is a misdemeanor to refuse a breath test in Florida, Minnesota, and Nebraska.

Other states have enhanced penalties, which can include additional minimum jail time and higher fines. You may also have additional time requirements for substance abuse and driver education programs.

Getting Your Driver’s License Back

Even after the one-year suspension period, there are still several steps to take to get your driver’s license. You generally need to pay a reinstatement fee and complete substance abuse counseling or DUI school. Refusing to take a breathalyzer test could end up costing you over $1,000 or more. However, the inconvenience of losing your driving privileges could cost you much more.

Find Legal Help

A qualified DUI or DWI defense lawyer can help you deal with the legal consequences of a test refusal. Your attorney can contest the grounds for your arrest and help you get your license back.