The Law Dictionary

Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.

Rolling the Dice by Refuseing a Breathalyzer Test

Arrested for DUI or DWI?

Get connected with a DUI lawyer in 60 seconds or less.

Can an individual refuse to take a breathalyzer test?  In every state that has a breathalyzer statute, yes, you can refuse to take the breathalyzer test.  Can an individual refuse to take any chemical test if stopped for suspicion of drinking and driving while impaired?  Again, yes, an individual can refuse to take any chemical test.  In many states that have a breathalyzer statute, there is also a consequence for refusing to take the test.  In some states this consequence is the automatic and immediate loss of license.  It does not require that the driver even be convicted, or even arrested, for DUI.  This is a situation that occurred when the driver obtained a driver’s license.  Known as “implied consent”, the state RMV has a statement on the license application that the driver acknowledges and agrees that refusal of chemical testing at a lawful stop by police for suspicion of drinking and driving is this automatic loss of license.  Nice.  It appears that if a DUI arrest is dismissed, the loss of license would also be dismissed because the violation of implied consent is a civil statute with the RMV and is based on a lawful stop by the police for suspicion of impaired driving.  In some states experts state that refusing to take the chemical testing, at least the breathalyzer, the penalties can be worse than taking the testing and facing the results in court.  The reason that this is true is because the states, in their various trends of legal wisdom, each set forth mandatory consequences for these violations.  When a judge has the facts and figures of the case in his or her hands, the judge makes mandatory and subjective decision that lead to conviction and penalty.  What the law demands and allows at this point is very typically less severe.

When an officer pulls a driver over on suspicion of driving impaired, the officer has specific actions that he or she must do to arrive at a legal stop, legal determination of impairment, and legal arrest.  One of these actions, in most states, is telling the driver what the law requires, expects and what the driver’s rights are.  The officer also has to warn the driver of the penalties that will result from refusing to take the test.  If the officer in any way states any consequence incorrectly, it would be grounds for dismissal of charges. A few people related that the wording an officer used gave them reason for refusing the test.  This wording, suggesting that a consequence could happen, or may happen, rather than would happen, was sufficient grounds to refuse the testing and, later, to have the charges around the refusal dismissed entirely.

Depending on how high a reading is on a chemical test for alcohol, the reading itself can be sufficient to convict the driver.  This is called “DUI per se”.  Each state that has a statute for its definition also has the blood alcohol content (BAC) level that if reached says that the driver is legally DUI.  Most states seem to use the .08 percent BAC as the threshold.