If you are pulled over by a police officer and asked to take a breathalyzer test, there are certain things that you should consider before you make a decision to consent or refuse the test. There is a common assumption that if you don’t take a test to determine your blood alcohol level, there won’t be any evidence in court for the police to prove that you were intoxicated, and you can avoid trouble. This is not entirely true, partly because of the fact that while many people think of driving as a right, the state considers it a privilege. This privilege is offered by the state after a passed written and driving test, after which a series of laws and guidelines are presented to you to abide by as you are granted your license. Within this signed agreement, a condition that is important when interacting with law enforcement is known as “implied consent”. Implied consent consists of three responsibilities that are required to be followed by the driver. The first one entails that everyone should be able to produce a driver’s license and proof of insurance when they are asked by law enforcement. Secondly, you consent to all blood, urine, and/or breath tests to gauge your blood-alcohol content if you are asked. The third responsibility is that you provide field sobriety tests when you are asked to do so.
Even though you agreed to follow these conditions upon gaining your license, you still have the option to refuse a field sobriety test or breathalyzer test. However, this is itself a violation and is treated as such in every state. Furthermore, a law enforcement officer can arrest you for refusing the test if they feel that you are intoxicated and are a risk to your safety and the safety of others. In some states, the law enforcement officer has the right to confiscate your driver’s license as well. In this sense, refusal is considered an administrative offense, and not a criminal offense. To explain, in most states cases such as this one would be considered an administrative function of the department of motor vehicles and not under the jurisdiction of the criminal court. This is justified by the fact that the department of motor vehicles issued your driver’s license to you, so they are also granted the right to take it away. Depending on the state you live in, your license may be suspended from a period of 6 months up to a year. You may be required to pay additional fees and penalties as well before you can get back your license. In court, the refusal of a breathalyzer test can negatively impact your chances of avoiding a DUI conviction. Any of the officer’s observations that they made before and following your arrest can be considered legitimate evidence. As you speak with an officer, slurring your words, having breath that smells like alcohol, or not being able to walk straight could all be held as evidence proving your guilt. In some jurisdictions, the fact that you refused a breathalyzer test alone could be sufficient evidence for your guilt.
As a general rule, it is the right decision in most cases to consent to a breathalyzer test. However, the issue of breathalyzer tests and the significance of whether the driver consents to them or not is complex and varies from state to state. Some states carry a “no-refusal” policy, which means that even if you refuse a breathalyzer test, an officer can quickly obtain a warrant that forces you to consent to their request for a BAC test one way or another. In addition, some states’ policies on refusing breathalyzer tests make it appear preferable in some ways to endure the consequences of a DUI citation than to refuse. To compare, in some states the length of a driver’s license suspension for a first-time DUI offender is 60 days, while refusing a breathalyzer test gives a 6-month suspension. In a scenario where you have only had one drink, you may hesitate to take a breathalyzer test out of fear that your test will come back as a false positive. However, one drink for an average adult male will only record a .02 blood alcohol content, not close to the legal limit of .08 and making the chance of recording a false positive slim to none. If you choose to refuse the test, there is a significant risk of your license being suspended for six months along with associated fees and penalties required to get it back. Therefore, it may be beneficial in a scenario where you’ve only had one drink to agree to an officer’s request of taking the breathalyzer test.
In a scenario in which someone has had two drinks or more, the decision of whether to consent to a breathalyzer test or not can be more difficult. Something to keep in mind, in this case, is that there may be pieces of evidence that are already incriminating against you, such as swerving in the road while driving or slurred speech as you are talking with an officer. If you are in this position, you should carefully weigh your options. If you blow above the legal limit of .08 BAC in a breathalyzer test, the law enforcement has probable cause to arrest you immediately and most jurisdictions can prosecute you via the “per se” DUI, which is difficult to fight in court even with a seasoned DUI practitioner. If you refuse the breathalyzer test, you may still be arrested, but in many jurisdictions, the only avenue of prosecution they have is the “opinion” DUI, which relies purely on the testimony of the officer who arrested you.
With a skilled DUI attorney representing you, this is possible to disprove in court by effective cross-examination. Therefore, in a scenario where you have had multiple drinks and there could be incriminating evidence already, it may be the wise choice to refuse a breathalyzer test.
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