Should I refuse to take a breathalyzer test if I've been drinking and get pulled over?

Answer 1

Once a DUI suspect has been asked to submit to chemical testing, any decision, whether to submit or not to submit to the tests, can have both civil and criminal ramifications. Refusing to take the test raises several issues in a criminal DUI case including admissibility of the refusal as evidence, refusal to take the test as a crime itself and using the refusal for enhancement purposes.


When prosecuting DUI cases involving alcohol, the state frequently relies on chemical test results to prove the DUI defendant's guilt. If the DUI defendant refused to submit to chemical testing, the prosecutor will attempt to introduce evidence of that refusal and induce the court to prematurely conclude that the DUI defendant knew he would fail the test; hence he/she is guilty of DUI. In these cases, a DUI lawyer should be prepared to aggressively argue this point.

Some state statutes are prepared for this dilemma and detail the admissibility of an individual's refusal to submit to a blood alcohol test. The language of one statute specifies, “If a person under arrest refuses to submit to a chemical test, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or drugs.”



Although statutory language may provide for the admission of refusal evidence, and the U.S. Supreme Court has upheld the constitutionality of such provisions, state courts may limit the application of such a statute based on the language of the state constitution or judicial interpretation of the state's statutory DUI scheme. One court has restricted admission of refusal evidence to situations in which the DUI defendant denies being given the opportunity to take a chemical test, claims that results of the test taken were exculpatory, challenges the competency of the testing or challenges the credibility of the officer.



Compliance with the qualifying provisions of the statute providing for the admission of refusal evidence may be required. For example, a statute may permit the prosecution to introduce evidence of the DUI defendant's refusal to submit to chemical testing at trial, provided the defendant was advised of the consequences of refusal. If the warning was not given, the refusal evidence would be inadmissible. Frequently, the admissibility of refusal evidence will be dependent on compliance with the state's implied consent statute.



The admissibility of refusal evidence in a criminal proceeding for a DUI drinking/driving violation may have an impact on the individual's constitutional privilege against self-incrimination and right to due process. The discussion of whether the admission of refusal evidence constitutes a violation of the provision against self-incrimination focuses on two aspects of refusal evidence: 1) the classification of refusal evidence as testimonial or physical in nature and 2) determination of the coercive or voluntary nature of refusal. Due process considerations center on the involuntary testing of an individual following a refusal.

The bottom line for this issue may be concluded as follows. A driver who has been arrested for a DUI drinking/driving offense has the "choice" of submitting to a blood alcohol test, which may yield incriminating results, or refusing the test with the consequences of license revocation and the admission of that refusal as evidence in the criminal trial.

The Fifth Amendment of the U.S. Constitution provides that no individual "shall be compelled in any criminal case to be a witness against himself." The leading U.S. Supreme Court case on the issue ruled that the admission of an individual's refusal to submit to a blood alcohol test does not violate the Fifth Amendment privilege against self-incrimination applied to the states by the Fourteenth Amendment.



This opinion took the position that a refusal to submit to a blood alcohol test is not the type of compelled testimonial evidence protected by the Fifth Amendment. The protection against self-incrimination does not extend to all forms of evidence, which may be provided by the individual to the state. Rather, the Fifth Amendment privilege only protects the individual from being compelled to provide evidence of a testimonial or communicative nature.



As stated previously, the results of the blood alcohol test are considered real or physical evidence, and as such do not receive protection under the Fifth Amendment. Simply put, as the results of the test are not constitutionally protected evidence, refusal to submit to a blood alcohol test is not a constitutionally protected right. Furthermore, statutory language that permits a refusal does not establish a right to refuse a blood alcohol test when requested following arrest for a DUI drinking/driving violation. Such language merely covers a contingency when the cooperation of the individual is not forthcoming.



Although the Fifth Amendment does not protect the actual test results, additional statements made at the moment of refusal may be protected, as they could be considered testimonial or communicative in nature. In states where there is no specific statutory obligation to take the tests, the DUI defendant’s lawyer could successfully stop the defendant’s refusal to submit to field sobriety testing from being introduced as evidence against at trial.



Compulsion is another determining factor in the debate over constitutionality of admissibility of refusal evidence. The U.S. Supreme Court has found that there is no coercion involved in obtaining refusal evidence when an individual is arrested for a DUI drunk-driving offense and is requested to submit to a blood alcohol test.



Even though the DUI defendant had not been warned that a refusal could be used against him at trial, some courts have still ruled that the defendant's rights under the due process clause was not violated. Admittedly, the arresting officers did advise the DUI defendant that his refusal to submit to chemical testing could result in the loss of his driver's license for one year however, the officers did not specifically inform him that evidence of the refusal could also be used in any criminal proceedings against him. Because a suspect does not have a constitutional right to refuse chemical testing, the DUI drinking/driving defendant cannot claim that a warning was constitutionally required.



Evidentiary rules can alter the admissibility of evidence of refusal. One such rule states, "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Courts have found refusal evidence to be generally relevant to establishing evidence of consciousness of guilt, although on occasion it has been held irrelevant.



One court held that if the refusal is submitted in order to draw an inference of guilt or innocence, then it is irrelevant. Since the refusal may be admitted as evidence despite the best arguments, the best method to overcome this particular problem for the DUI defendant may be for the defendant to present evidence of his reasons for refusal. It has been found that this method may effectively counteract any prejudice admission of evidence of refusal may cause.



Some states have enacted a statute criminalizing the refusal to submit to a blood alcohol test. The purpose of the refusal statute is "to encourage all suspected drunk drivers to take the breathalyzer test." The criminal offense of refusing to submit to chemical testing is separate and distinct from the DUI drinking/driving offense. The penalties imposed as a result of a conviction are additional to the penalties imposed if the defendant is also convicted of the DUI drinking/driving offense.

Answer 2

Here in Canada the penalty (fine and suspension and/or jail time) is the same for blowing over or refusing to.
Refusals are usually clear cut and are difficult to defend in court.
If you blow over, the results from the machine can be questioned in court (technical stuff), and there is always the chance that you won't blow over.
Here, if the person is able to provide a breath sample they won't go after a blood sample if there is a refusal.
My best advice would be that if this ever happens, you should contact a lawyer and do what they tell you to do.

Answer 3

In most states there is "Implied consent" to the breathalyzer test.
If you refuse the test you will automatically go to jail, where you will submit to the test anyway. You may buy yourself an hour to alllow the alcohol in your system to metabolize, but they already know alcohol's metabolic decay rates, so they'll extrapolate and still know what the level was when you were driving.

All of us who don't drink or do drugs and drive want you guys to quit risking OUR lives when you drunkenly aim that 2 ton gun at me on the highway.

The law is not there to stop you from having fun, its to stop you from killing someone. Just don't drink and drive--you won't have to worry about it.

Answer 4

Not in my state. Here you are not asked to give a breath sample until AFTER you're already under arrest. We arrest based only on impairment and not the breath test.

In my state if you blow over the limit, you lose your license for 90 days, but you can get a hardship permit to get to work, and will be prosecuted for DUII.

If you refuse to blow you lose your license for a year and are not eligible for a hardship permit, get fined $1,000 for refusing to blow, and still get prosecuted for DUII. On top of that the officer will probably just get a search warrant for your blood and get the same info that way.

Just don't drink and drive, then you won't have to worry about it.

Answer 5

If you refuse 2 take a breathalyzer test, the cops will believe that you're drunk and take you to jail. so you mines well take it. But you do have the right to refuse. YOU DRINK, YOU DRIVE, YOU LOSE!

Answer 6

YES!
Refuse it! You will spend the night in jail, and your license will be revoked for 1 year and you will pay a hefty fine but that is waaaaay better than having a DUI charge where you still have to pay a fine and you can't drive. It all about the proof!!!!! If you blow, you're screwed and a lawyer won't even be able to help you out of that one. If you do't blow, it gives the lawyer more to work with.

Answer 7

Depends on what state you live in.
Refusing to take it is automatic arrest and license suspension, but less than a dui charge

Oh is this cause its almost New Years? My local paper publishes the check points for drunk drivers, you should see if yours does that. avoid those roads lol.

Answer 8

You will have already taken sobriety test. If you refuse to take a breathalyser most states automatically revoke your license. Most states will revoke it for refusing to do a sobriety test.If you appear drunk and there is probable cause you will be arrested and taken to jail. The police do not need a breathalyser test to back them up. If you have to go to the hospital they can have a nurse take your blood legally and test it for alcohol.

Answer 9

I don't know if this still works but say you want a blood test instead, say the Breathalyzer is against your religion or unreliable, or you have asthma (that's a good one, asthma) so you can't blow, it will take at least an hour to get blood at the hospital, 3 hours in St. Louis City, by then who knows, you might be sober

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Answer 11

When you sign to get your license, you agree to take a breath/or blood test. Called implied consent. The penalties for refusing to take a breath test are usually just as bad if not worse than if you fail the test.............