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What Happens If I Refuse to Take a Breathalyzer?

By Ephrat Livni, Esq. | Last updated on

It's a free country and you can do what you want, more or less. But if you are driving, that's a privilege and you must do what the state wants if you want to be able to stay on the road.

Refusing a breathalyzer has consequences for your life and your license, but people do it all the time. Let's consider the controversial tests and the critical concept linked to them, implied consent.

When you receive a driver's license, you are granted the privilege of operating an automobile on public roads. This privilege may be suspended -- usually six months on a first offense, but state laws vary -- if you don't comply with a police officer's request that you take a breathalyzer when you are suspected of driving under the influence (DUI) or driving while intoxicated (DWI). The test is meant to provide your blood alcohol content, or BAC, quantifying your level of intoxication for police.

The license suspension is based on a concept called implied consent. What it means is that by seeking and accepting a license to drive you have indicated your willingness to cooperate with police if you are asked to take a breath test. Refusal can have consequences separate from a criminal case. For example, some states will suspend a license automatically on the basis of a refusal. Whatever the outcome of the criminal case, the Department of Motor Vehicles may act independently on suspensions.

Why People Refuse

Despite the likelihood that a refusal to take a breathalyzer will cause problems for licensed drivers, many people do refuse. In New Hampshire reportedly about 80 percent of drivers who are pulled over refuse to take the test when requested. But that's the state whose people pride themselves on living free or dying. In Delaware, the refusal rate is about two percent, which may indicate that the state's attitude toward implied consent is very strict.

Regardless, in any state, the reasons people may refuse are many. Some do so standing on principle, sometimes even when they have not had any alcohol. Others refuse because it does make it harder for the state to prove its case if there is no evidence in the form of a number quantifying how much alcohol is in your system.

But the state can still prove a case without the numbers, and refusal to submit to the test is generally admitted into evidence. Juries are instructed as to the weight to give a refusal, among other instructions.

If You Blew

It's also notable that even if you take the breathalyzer test, and you blow above the legal limit, you can still be found not guilty at trial. Juries can be instructed by the defense as to what weight to give a test reading compared to other evidence. Maybe you took field sobriety tests that are on video and you seem lucid. Sometimes people may even blow and have a high reading based on ingesting medication. The test is just one element of a case.

Talk to a Lawyer

If you have been charged with DUI or DWI, whether or not you refused a breath test, speak to a lawyer about your defense. Many attorneys consult for free or a minimal fee and will be happy to assess your case.

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