By Jacob Bradshaw, Esq.
You have a right to refuse a breathalyzer or blood test for alcohol. The State has the right to punish you for doing so.
You’ve just been pulled over. The police officer asks you to step out of your car and take a breathalyzer test. Should you accept or refuse? The answer is complicated and can depend on the situation.
- If you take the test and fail it, a first offense results in a driver’s license suspension of 180 days.
- Subsequent offenses will result in a suspension of 270 days if your blood-alcohol content is 0.15 or higher.
As a general rule, you cannot be forced to take a breathalyzer or blood test for alcohol. There is an exception to this rule: if you are involved in an accident that results in someone’s death, or in life-threatening injuries, the police can test you if they reasonably believe that you were driving under the influence.
Assuming no one dies or is seriously injured, you can indeed refuse to take the breathalyzer (or a blood test). But the option to refuse carries significant penalties.
- If you refuse to take the test, your driver’s license can be suspended for 270 days, regardless of how much alcohol you had.
- For subsequent refusals, the suspension period increases to two years.
If you do refuse the test (or take the test and fail), then you will receive an “order of suspension” notifying you that your driver’s license will be suspended. You then have 30 days in which to request an administrative hearing to challenge the order.
So why would anyone want to refuse the test?
As explained above, refusal to take the test can result in longer driver’s license suspensions than taking and failing the test. On the other hand, if you do take the test, then the results may prove that you were driving under the influence.
Drunk driving is a serious crime. There are two criminal offenses with which drunk drivers can be charged:
- “Driving While Impaired (DWI)”; and
- “Driving While Under the Influence (DUI)”
The difference between the two offenses is complicated and confusing. A DUI carries greater penalties and is generally charged against drivers with a Blood Alcohol Content (BAC) greater than .08%. However, a driver with a BAC below .08% can still be charged with either crime if they are intoxicated and unable to drive safely.
- For a DWI, you can receive up to 2 months in jail and a $500 fine for a first offense, and up to 1 year in jail and a $500 fine if you have prior DUIs or DWIs (for drugs or alcohol). The penalties are more severe if you have a minor in the car with you.
- For a DUI, you can receive up to 1 year in jail and a $1,000 fine for a first offense, and up to 2 years in jail and a $2,000 fine if you have prior DUIs or DWIs (for drugs or alcohol). The penalties are more severe if you have a minor in the car with you.
If you take a breathalyzer or blood test, the police can use your BAC result to help prove that were impaired or under the influence. By refusing to take the test, you may prevent the police from obtaining your BAC and using it to convict you. However, the police can still use any other evidence they have to show that you were intoxicated or under the influence. They can even argue that your refusal to take the test is evidence that you were drunk.
So What Should I Do?
Ultimately the decision whether to take or refuse a breathalyzer of blood test for alcohol is up to you. Whether refusing is a good idea or not depends on the specific facts and circumstances of each case. Refusing the test could make it harder for the police to prove that you were drunk. But if it’s obvious that you are driving drunk, you could get convicted anyway and face more severe punishment than if you had just taken and failed the test. If you are not drunk, refusing the test will result in an unnecessary suspension of your driver’s license without providing you with any benefit.
***This article is not legal advice. The information contained in this article is not a substitute for speaking with an attorney. Every case is different and contains unique facts. If you have been arrested or charged in connection with a DUI or DWI, contact Greenblatt & Veliev to speak directly with an attorney about your legal options.