If you are in the habit of driving after a couple of drinks, you may believe that you’re ready to outwit the officer that will inevitably pull you over one day.
You might be ready with a great excuse for why you’re behind the wheel despite having a few beers earlier. You may believe that you can put on a really convincing show of sobriety even when the world is tilting just a little. You may have heard that you can put a penny in your mouth to confuse a breath test. You may believe you can dispute the decision to pull you over, and of course, there’s always your right (as far as you know) to refuse the breath alcohol test.
So … can you refuse a breathalyzer test?
Before we can give a clear answer on this, we need to clarify that you don’t have any constitutionally protected right to drive a vehicle in the U.S. Rather, if you meet the various conditions, you are granted the privilege of using a registered vehicle while licensed by the state you live in.
A big part of that privilege, which you agreed to when you complete the paperwork to get or renew your license, is that you will abide by all relevant laws set by your state for operating a vehicle under that license. This is known as “implied consent“, and what it means is fairly consistent across most states.
One element of this implied consent is that you agree to provide certain documentation (license and registration) when asked to by a police officer. Another is that you agree to blood, breath and urine tests and a field sobriety test if requested.
So what happens if you refuse to comply?
The officer that pulls you over isn’t going to physically force you to blow in a breathalyzer and is not about to start extracting bodily fluids against your wishes (though see below for when this isn’t actually true). But they can and will arrest you and charge you for refusing to comply with a lawful request. Each state has different penalties for refusing to take such a test, and they will be charged to you even if you aren’t ultimately found guilty of drink driving.
And since you entered into an agreement to comply when you received your license, it can be taken from you on the spot as an administrative action related to your violation of the implied consent, and will most likely lead to a suspension of the license and fines applied.
But maybe this is better than the alternative …
Despite some level of intoxication, you may be doing the math in your head and decide that losing your license for a period and paying a fine is better than being convicted of a DUI. After all, if you don’t agree to the tests that are used to determine intoxication, how can they present evidence of it?
The truth is, the breath, blood, urine or behavioral tests are useful to law enforcement to determine a DUI, but such a charge can be brought and prosecuted in their absence if the officer makes the case that their observations were consistent with driving drunk, and a judge will accept this as evidence in the absence of other data. And along with the fact that you chose not to comply with actions that you had previously agreed to, your overt avoidance of the tests will likely raise significant suspicion that your motivation was that you were aware of your level of intoxication and were seeking to evade such a finding. It’s practically an admission of your guilt.
Sometimes there isn’t a choice
In some states, there are “no-refusal” policies, which mean that the officer on the scene can have an almost instant warrant issued in the case of someone refusing to provide a breath alcohol test, and these are sometimes employed during holiday weekends and at other busy times or locations with a higher likelihood of coming across drunk drivers. Such a warrant gives the officer a right to a blood sample, and they are able to use some appropriate amount of force and constraint to achieve this.
What do the defense lawyers say?
Certain lawyers argue that field tests and portable breath alcohol measuring devices are unreliable, and in some jurisdictions, the only breath alcohol machine that provides readings that are admissible in court are located at police facilities. What this generally means in practice is that police make use of the portable machines and behavioral tests (i.e. walk in a straight line) simply as a means of identifying whether someone should be taken to a police station, where they will submit to the more formal and reliable testing equipment.
Refusing such tests leads to the resolution of the situation in a courtroom rather than the side of the road, which may be preferred under some circumstances, but as mentioned above, you’re generally starting at a disadvantage on the basis of your decision to refuse broadly accepted on-the-spot tests. And lawyers are compensated much better when a client chooses to fight a charge, regardless of the outcome, so consider such legal advice carefully.
When you end up in jail for a DUI
As described above, the decision to comply or refuse becomes moot if the officer makes the decision based either on evidence collected or their observations to remove you from your vehicle and detain and charge you. You need to then make the right decision to attain your release through bail or a bail bond and prepare for your day in court.
If you find yourself in this position, contact us as soon as possible so you can take the next steps in your defense.