Refusing a Breathalyzer Test
One of the most common questions people have about DUI law in general is whether you can or should refuse a breathalyzer test when pulled over by a police officer. The answer depends on what state you live in, as laws regarding the refusal of breathalyzer tests vary greatly among jurisdictions, and many other factors, including but not limited to the following:
- Was there an accident involved?
- Was anyone injured or killed?
- Is this your first offense?
- Would there by a felony charge?
- How likely is the test to show impairment beyond the legal limit?
Accordingly, it is advised that you consult a DUI attorney in your state regarding this issue and other specifics in your case. You may or may not be entitled to an attorney before deciding whether to submit to a breathalyzer test, so if you find yourself in the situation of being asked to take a test, you should request an attorney at that point, just in case.
What follows is some general information on the refusal of breathalyzer tests, but again, be sure to check your own state law to be sure you’re aware of the exact rules that pertain to you.
What happens if I refuse a breathalyzer test?
If you have been pulled over by a police officer and refuse to perform a breathalyzer test, chances are good that you will be arrested for driving under the influence (DUI); the officer can base the arrest on his own observations, your statements if any, and/or field sobriety tests, so the breathalyzer test isn’t actually necessary in order for him to make a DUI arrest. In most states, you will not receive extra penalties for having refused this test, but do be sure to check your own state’s law.
If you refuse to perform a breathalyzer test at the police station or hospital, though, there could be more serious consequences depending on state law.
Can the results of a breathalyzer test be used against me in court?
Maybe. While results from evidentiary breathalyzer tests (EBTs) are often admitted as evidence, those from portable breathalyzer tests (PBTs), which are used by police officers at the scene, often aren’t. Essentially a PBT is a tool that helps a police officer decide whether to arrest you for DUI in conjunction with his own observations, your statements, and field sobriety tests.
What is “implied refusal” to take a breathalyzer test?
Some states have the concept of “implied refusal,” which includes instances of when a person either can’t give consent because he is unconscious or isn’t blowing hard enough into the breathalyzer to get an accurate reading. This “implied refusal” may make a difference in whether you face additional penalties for refusing a test, but again, it depends on state law.
Be sure to contact an experienced DUI attorney in your area for more information about whether you should refuse a breathalyzer test if pulled over.