Yes, you can refuse a breath test in any state. However, there will always be a consequence for refusing a post-arrest breath test from a police officer unless your case is dismissed.
The severity of the penalty varies by state, even if you weren't drunk driving. Some states treat test refusal as a criminal penalty, while others treat it as a civil penalty. You can face legal consequences even if you refuse because you believe you did nothing wrong.
The administrative/criminal penalties for refusing a Breathalyzer test are in addition to penalties for any DWI conviction. Even on a first offense, those penalties usually carry mandatory minimum sentences.
This article explains the typical consequences of refusing a Breathalyzer test for blood alcohol content or blood alcohol concentration (BAC) in cases of operating a motor vehicle under the influence of alcohol. You can also watch FindLaw's short one-minute video on Breathalyzer test refusals to learn more.
Refusing a Breath Alcohol Test: What Really Happens?
Refusing a blood alcohol test will likely result in severe consequences. Suppose an officer stops you and believes you are intoxicated based on your actions. They will probably ask you to perform field sobriety and mobile breath tests.
You are not under arrest at this point. However, refusing the mobile breath test may not be a good idea. You will want to know whether there are consequences to such a refusal.
Prosecutors can still base a DUI or DWI charge on other evidence of impairment collected at the scene. This evidence typically includes officer observations, witness testimony, or field sobriety test results. Having a test refusal listed in your legal case can also reflect poorly on you in front of the prosecutor or judge.
Penalties for Breathalyzer Refusal
If you refuse a post-arrest test to determine your blood-alcohol concentration, you may risk:
- Having your license suspended for three, six, or even 12 months
- Automatic and instant license revocation for one year
- Being held in jail until a judge can hear your case (if you are arrested over the weekend, you typically won't see a judge until Monday or Tuesday morning)
- Being held until the officer has the warrant to force you to take a BAC test
- Your refusal may be used against you in any possible trial
- Criminal penalties if your state makes the refusal a crime
Pre-Arrest vs. Post-Arrest Breathalyzers
Some state laws distinguish between:
- Refusing a mobile Breathalyzer (which can carry a minor penalty or no penalty)
- Refusing a post-arrest BAC test of blood, urine, or breath (which can result in more severe penalties)
In Ohio, for example, refusing a breath test after arrest violates the state implied consent law. This includes blood, breath, or urine tests. The penalty for refusal will begin with an automatic one-year license suspension. The length of the suspension will increase on a subsequent BAC refusal.
You can compare every state's DUI laws to understand your state's specific laws and penalties. Remember that you are subject to the different regulations in any state you drive.
Implied Consent Laws: The Basics
Driving is considered a privilege and not a right. States can suspend or revoke your driver's license, levy fines, or even put you in jail for not submitting to a BAC test when suspected of a DUI.
Under "implied consent laws," drivers have implicitly consented to a BAC test in exchange for driving privileges. In other words: you risk the surrender of your driving privileges if you refuse a Breathalyzer.
In a common scenario, you may refuse the road or mobile Breathalyzer at the scene. If the police officer still arrests you based on other evidence, you will be given the chance to take the BAC test at the police station (while in custody) or at the hospital (when there for treatment). If you refuse the test at the police station or hospital after an arrest, you will face an administrative or civil penalty of a license suspension. This is based on the law of implied consent. Your refusal may also be used as evidence against you in a criminal DUI case.
Anyone who complies with the roadside breath test but tests over the legal limit may also be arrested. The result may become part of the probable cause for a DUI arrest. The police will offer a BAC test again at the station before processing for jail or summons to court.
License Suspension Basics
Most states will penalize a test refusal administratively by suspending your license for up to 12 months. This varies by state. This suspension can be in addition to any suspension the court may order if you are convicted of DUI in a criminal case.
Sometimes, a driver can appeal this suspension or submit to specific programs or alternative sentencing options to get their license back. This may include the use of ignition interlock devices (IID), the payment of reinstatement fees, or the completion of programs.
Find your state in this chart to learn about suspended license reinstatement requirements and key statutes.
You can expect a typical revoked license appeal process to include the following:
- Filing an appeal or reinstatement application
- Paying fines or fees to the DMV and court
- Re-taking driver's tests
- Completing an alcohol safety action plan or "DUI school."
- Installing and providing proof of an IID for a period of time
- Serve your probation, partial sentencing (if any), or other court-ordered requirements
Criminal Prosecution for Refusal of a BAC Test
Some states have passed laws creating a crime for refusing to take a BAC test when arrested by police for a DUI. The penalties for the refusal crime often mirror the penalties for the DUI crime itself.
The U.S. Supreme Court held that a state's criminal refusal law violated the Fourth Amendment prohibition on unreasonable searches as applied in Birchfield v North Dakota (2016). North Dakota's law had permitted prosecution when the defendant refused a warrantless blood test for BAC content.
The Court stated that prosecution for refusing a warrantless breath test did not offend the Fourth Amendment. They said it fell under the exception for searches incident to arrest and provided minimal invasion of privacy while promoting a legitimate government interest. The Court found that a warrantless blood test involved a much greater invasion of a person's privacy.
The Court concluded taking a blood sample constituted a significant intrusion of a person's body. On balance, the Court would not sanction a criminal prosecution for refusal of a blood test when no search warrant for the test had been obtained by law enforcement.
In a subsequent case in North Dakota in 2017, the Supreme Court of North Dakota struck down the prosecution of a defendant who refused a warrantless urine BAC test. The Court there found that a urine test involved similar invasions of privacy as a blood test. It concluded prosecution violated both the U.S. and North Dakota constitutional protections against unreasonable searches.
License Suspensions After a Past DWI
Anyone with a past DUI conviction may face increased penalties for refusing a Breathalyzer or other BAC test. This can include longer license suspensions or jail time. Some drivers decide the consequences or penalty for refusing a BAC test is less severe than facing a third or fourth DUI conviction.
On average, 20% of those suspected of driving under the influence in 2005 refused to take a BAC test. This data is provided by the National Highway Traffic Safety Administration (NHTSA). Significant differences in state-by-state refusal rates suggest wide variances in how implied consent laws are enforced.
Some states have adopted "no-refusal" DUI enforcement initiatives. This is in response to drivers who refuse a Breathalyzer test in the hopes of avoiding criminal charges. Several states have utilized the no-refusal program. Sometimes this has occurred in well-publicized no-refusal weekends.
This program can force a suspected impaired driver to take a breath or blood test under the authority of a warrant. It gives police officers the ability to get electronic warrants instantly or very quickly from on-call judges. This leads to more test results demonstrating the concentration of alcohol in the driver's system.
"No-Refusal" Program Basics
The warrant is sent to their mobile devices by a judge. The program was created to address a suspect sobering up before a paper warrant could be physically obtained. It also creates a harsher punishment.
Refusing a warrant-ordered BAC test in a "no refusal" program (or "no refusal weekend") can result in serious contempt charges. It can also result in police drawing a blood test by force.
As of June 2023, some 27 states have the legal authority to create no-refusal DUI enforcement initiatives. However, only nine states actively use them.
Also, some states allow drivers to contact an attorney before deciding what chemical test to take after a traffic stop. This is an essential piece of information to know for your state. Check with the laws in your state and local jurisdiction for more details.
Are There Strategies To "Avoid" a Breathalyzer Test?
You can only avoid a breath test from a law enforcement officer if you verbally refuse the test. This is not truly "avoiding" because you will likely face some consequences later.
There are some myths about "tricking" a breath alcohol test to show you are under the legal limit. Strategies such as hyperventilating or holding your breath before taking the test have mixed results.
Hyperventilating may lower BAC, but holding your breath may increase the reading by 20%. These behaviors can also trigger suspicion from officers.
Some test results can be false positives, such as using mouthwash before a test or a person with diabetes showing an inaccurate BAC.
Questions About Refusing a Breathalyzer Test?
Even if you slip through the system without having your BAC tested, you can still face life-altering penalties, such as a lengthy license suspension.
Facing a DUI arrest and DUI charges is scary for anyone, whether it is your first time or you've been through it before. It is helpful to know a criminal defense attorney is not going to judge you and they will listen fairly to the situation.
A defense lawyer can evaluate whether the stop was lawful after reasonable suspicion. The arresting officer needs probable cause to make an arrest or get a warrant. An attorney's case review can protect legal rights and clear or reduce criminal charges.
Remember: a DUI lawyer is there to find the best plea deal possible or defend you in court if necessary. Test refusals can impact a DUI case. Professional legal advice is often essential in a DUI defense.
It is important to know how your state enforces DUI penalties. If you have questions about your rights and legal options following the refusal of a BAC test, talk to a skilled DUI attorney near you today.