What Happens if You Refuse a Breathalyzer Test?

The first question people have during a DUI stop is, “Can I refuse the breath test? What happens if I don’t take the test?” The short answer is, you can refuse to take a Breathalyzer test, but there may be serious consequences. In some states, the consequences of refusing may be more serious than taking the test.

Each state treats a breath test refusal differently. All states have “implied consent” laws, meaning drivers consent to blood alcohol testing as a condition of driving. Refusing a Breathalyzer test usually means losing your license in addition to any DUI/DWI penalties.

The severity of the penalty also depends on which test you refuse and other circumstances around your DUI stop. Refusing a breath test will not prevent an arrest or conviction for driving under the influence.

Breathalyzer Tests, Part I and II

After you get pulled over for a suspected DUI, police officers have you perform field sobriety tests to confirm the observations they made from your driving. According to the National Highway Traffic Safety Administration (NHTSA), alcohol has predictable effects on coordination and driving ability.

Law enforcement officers begin a traffic stop by looking for known effects like:

• Swerving or weaving over the yellow line

• Speeding or driving too slowly for the traffic flow

• Failing to stop for signals or sitting too long at a signal or light

• Failure to yield

If you have a valid explanation and no other signs of alcohol use, you may receive a warning or a citation for the violation. If the officer smells alcohol or sees other signs of alcohol or substance use, the next step is a field sobriety test and a preliminary breath test.

In most states, you are free to refuse both the field sobriety test and the preliminary breath test. If the officer has sufficient probable cause to think you were drinking and driving, they can arrest you and take you to the police station for a Breathalyzer test there.

The second test is the more accurate test. The portable units simply confirm the officer’s suspicions, but are not necessary for an arrest. The station’s Breathalyzer gives a more accurate reading. If you refuse this test, the police must obtain a search warrant to compel a blood test.

Possible Refusal Penalties

Refusing the preliminary or station breath test will not prevent a DUI charge. The laws address “impaired driving,” so you can still receive a citation for speeding, reckless driving, or other violations, even if you were not intoxicated.

Some states allow judges to use a refusal to take a test as evidence that you knew you were intoxicated. This knowledge, combined with the police observations and field sobriety test results, can be sufficient for a conviction.

Implied Consent Laws

All 50 states have some form of implied consent laws. Under these laws, submitting to a BAC test is a condition for keeping a driver’s license. Refusing a BAC test lets the state suspend or revoke your license.

In some states, such as California, you can face steep fines and possible jail time, separate from the drunk driving offense, for refusing the test.

If you refuse a post-arrest test to determine your blood-alcohol concentration, you may risk:

• Having your license suspended for up to a year. Lifetime suspension for repeat offenders.

• Forced blood testing in some states. Other states will hold you for a warrant.

• Courts may use your refusal against you in any possible trial.

• Criminal penalties (if refusal is a criminal offense in your state).

A number of Supreme Court cases have upheld warrantless breath tests, but have prohibited warrantless blood tests and urine tests as too invasive.

“No-Refusal” Enforcement

Prior to the increase in electronic warrants and patrol cars fitted with computers and printers, NHTSA proposed a “no-refusal” policy whereby drivers could not refuse a blood test without facing harsher penalties.

Very few states have enacted “no-refusal” policies because electronic warrants and 24-hour judges are available in nearly all jurisdictions.

Defense Strategies and When to Avoid a Breathalyzer Test

The best way to “beat” a Breathalyzer is by not drinking and driving. All states take impaired driving very seriously. DUI laws include driving under the influence of illegal narcotics and prescription drugs that impair driving ability.

A breath test only tests the level of alcohol in your lungs. There are some medical conditions that can affect a Breathalyzer reading. If you have any of these conditions, it’s better to tell the testing officer than to refuse the test:

• Diabetes: Diabetic ketoacidosis can produce acetone, a chemical resembling ethanol. Breathalyzers can register this chemical as alcohol in the blood.

• Gastric reflux disease: This disorder can cause stomach contents to return to the esophagus and mouth, affecting the BAC reading.

• Breathing disorders: Can prevent subjects from taking or exhaling deep breaths can cause inaccurate Breathalyzer readings. The machine requires a certain volume of air for an accurate test, so subjects unable to fully exhale may not get a proper reading.

If you believe you may fail a Breathalyzer for a medical condition, your best chance to avoid a DUI conviction is to give the information to your DUI attorney. It is never a good idea to refuse a Breathalyzer test unless you speak to an attorney first.

Can You Beat a Breathalyzer Test?

The short answer is no. You cannot beat a Breathalyzer test.

The longer answer is that all the myths circulating on the Internet and other places have been disproven. There is no way to beat a Breathalyzer test other than not drinking.

Get Legal Advice About Taking a Breathalyzer from a Criminal Defense Attorney

Losing your driving privileges, even for a short period, is a major inconvenience. Getting your license renewed after the suspension period takes more time and legal effort. If you’re facing a DUI charge or need help renewing your license, you need legal advice from a DUI attorney in your state.

FindLaw’s directory of criminal defense attorneys focused on DUI cases can help you find an experienced advocate in your area. You can filter results by state, city, ratings, and more. You can also read reviews from other clients to ensure you find the right lawyer for your case. Don’t wait to find a legal advocate who will ensure your rights are protected.