Do I have to take a breathalyzer if I am stopped and suspected of DUI?

Question

A friend told me that if I am stopped for a DUI I should refuse to blow.  Is this true?  I thought a refusal was an admission of guilt?

Jules N. Fiani · Answer

Yes.

Jacob P. Sartz · Answer

My first advice would be to contact a lawyer. If you need specific advice for your particular circumstances, you should consult privately with an attorney.   Speaking generally, the police are limited when they seek to administer certain types of field sobriety tests. They usually rely on the cooperation and permission of the pulled-over individual when performing these tests. If a person consents, their results will be potentially used against them if charges are filed. Generally speaking, refusing to cooperate with tests is not an "admission of guilt" per-say. There are constitutional protections against self-incrimination. Field tests, for example, are generally less reliable and usually cannot be forced upon a person.   However, once the situation escalates to an arrest, the circumstances are different. If a person refuses to take a data-master test at the police station, they risk a serious traffic ticket with huge license sanctions. Further, in certain situations, the police may even be able to obtain a court-order to do a blood draw.  Anyone charged with a OUI should consult privately with a lawyer. If they cannot afford to retain a lawyer, the court may appoint them one at the public's expense depending on availability.

Eric Sterkenburg · Answer

In California when you got your license you consented to taking a BAC test when asked by a law enforcement officer with probable cause to do so. You do have the choice of taking a breath test, a pee in a cup test or a blood test. If your friend is not a lawyer then do not take any advice from him on legal matters.

Janice Alfred · Answer

No, a refusal is not an admission of guilt, but it will result in suspension of your license for one to five years (depending on your record), unless you plead to a reduced charge, the case gets dismissed or you are acquitted.  If you are a first time offender and you consent to the breath-a-lizer, your license will be suspended for a year, however, you can apply for a conditional work permit to drive until your administrative hearing or court date.  You will also be able to apply for early reinstatement of your license if you complete DUI school and pay the appropriate reinstatement fee.

Thomas Tomko · Answer

You have the right to refuse.  However, there may be a charge of violation of the implied consent laws, which could result in loss of your license for 1 year.  Also, it could be grounds for a warrant to get a blood test, which would possibly support a conviction anyway.    It is easy to say that you should always refuse, but it will often depend on the circumstances in each case as to whether or not this is a good idea.  A general rule given by a friend is often good discussion, but may not be good advice depending on the circumstance.  I hope that this was helpful.

Thomas Mueller · Answer

There are no sanctions for refusing the test at the scene(called a PAS ). If you  refuse the test at the station there are severe consequences.

Michael Garber · Answer

You may refuse to blow, but you will receive an automatic license suspension unless you are able to beat the case at the license hearing. Refusal to blow is not an admission but can be used as evidence against you i.e. you believed you were intoxicated.

John Bussman · Answer

BEFORE you're arrested, you can and should refuse the breath test.  You have no obligation to assist in the investigation against you.  By voluntarily submitting to the breath test, you are essentially doing the cop's / prosecutor's job for them.  AFTER you're arrested and transported to the police station, you MUST submit to a breath or blood test under CA's "implied consent" law.  Refusal to submit to the test AFTER you're arrested will result in an automatic 1-year license suspension and may be considered evidence of guilt.

Samuel H. Harrison · Answer

You can refuse to take any of the field sobriety tests;walk-and-turn, one-leg-stand, horizontal gaze nystag test (follow the pen/finger with your eyes). If the officer arrests you and asks you to take the "state administered test," you do not have to take the test, but your license can be suspended for a year.

Craig Elhart · Answer

Under the Michigan Implied Consent Law, if you refuse to take a  chemical test upon proper request of a police officer, the Secretary of  State will suspend your license for a period of one year.  You have the  right to refuse but there are consequences.  If you refuse, it is  likely the police will seek a search warrant to obtain a sample of your  blood for analysis.

James Schoenberger · Answer

No, but a refusal will result in a suspension of your drivers license.

Louis Leibowitz · Answer

You do not need to take the breathalyzer if you are pulled over by the police. But if you don't take the breathalyzer your license will be suspended and the prosecutor can use your refusal as evidence that you thought you were guilty. However, without the breath test the prosecutor has less evidence. Sometimes it is easier to beat the case or at least get a better plea offer. If you are not concerned with your license getting suspended for a few months, it may be better to refuse the test.

Timothy Klisz · Answer

If you refuse, you lose your drivers license for a year. Not great advice there.

Jared Altman · Answer

A refusal will result in revocation of your license for one year and the prosecutor can argue at trial that you didn't blow because you knew that you would fail. But, the jury does not have to accept that argument.

Jonathan Baner · Answer

A refusal is, generally, an automatic 1+ year driver's license suspension.

Joseph Dane · Answer

Unfortunately, your friend is giving you some bad advice.  See the link to an article on the Forbes website I wrote regarding getting stopped for DUI in California.    http://www.forbes.com/sites/quora/2011/10/31/what-should-you-do-if-you-get-pulled-over-for-drunk-driving-in-california/

Edward Blum · Answer

When you are stopped by the police and they suspect you have been driving under the influence, they will first administer some pre-field sobriety questions, then some field sobriety tests, then ask if you to take a breathalyzer at the scene of the crime.  You do not need to take this breathalyzer unless you are on probation for DUI.    As part of your driving privilege you agree or in legal-speak "give your implied consent" to a chemical test to detect blood alcohol content or the presence of drugs when such is suspected by the cops.  This test is administered post-arrest at this point the cops should, but often don't give you the option of a blood or breath test if they suspect you of being under the influence of alcohol or a blood or urine test if the cops suspect you of being under the influence of drugs.  You cannot refuse to give a sample (breath, blood or urine).  If you do, your privilege to drive will be suspended for at least 1 year based on your breaching your promise to do so in exchange for your license (see implied consent above).    You have a right to contest this through the DMV Administrative Hearing process.  You must request a hearing within 10 days.  At the hearing you can attack the officer's reasonable suspicion to stop you, his probable cause to arrest you and your knowing and intelligent refusal. What is and isn't a refusal is technical.  You must consult a lawyer to help you keep your license.

Michael J. Breczinski · Answer

Usually the suspension for refusing to blow is longer than if you get convicted of drunk driving. So most cases it is not a good idea.

Stephen Freeborn · Answer

I hope you did not listen to your friend.  While it is true that you do not have to submit to a breath test, the penalties for refusal are substantial. There is what is called the "implied consent law".  - that driving is not a right but a privilege; that by having the privilege to drive, you give the implied consent to submit to a breath test if you are lawfully requested to do so by an officer, meaning the officer has probable cause to believe that you were under the influence.  You can however refuse, but if you do so, you could possibly win the DUI charge; however, chances of that are slim because the prosecutor can have admitted at trial the fact that you refused to take the test and your refusal can be used as evidence against you.  Completely separate from the criminal case is the case with the Department of Licensing - which controls your licensing. In accordance with the implied consent law, whether or not you win the DUI case, the simple fact that you refused the breath test will result in the suspension of your license for, at minimum, 1 year.   Question is:  Is your refusal worth it???   To help you answer this question, you should consult with an attorney.  I hope it's not too late for you and that you didn't make a bad decision listening to your "friend".

Leonard Harden · Answer

A person can refuse to take a chemical test, but it may result in an administrative loss of license.  NH leads country is refusal rates at 81 percent according to NHTSA statistics. In terms of whether to test or not it really depends on circumstances but if you refuse it will be hard for state to prove case.

Jason Savela · Answer

In Colorado, once you are put in handcuffs, you must choose, blood breath or refusal.  If you refuse, that can be used against you in court and you will most likely lose your license for a year. If you have a good reason to refuse tell the cop that "like my lawyer said to never take these things because there are too many errors". There is no requirement that you participate in roadside sobriety tests like the eye test, walk and turn, one leg stand or portable breath test. Very few police cars have the cameras, so I say refuse them all  once in cuffs. Blood is most accurate. If you know you are really drunk then you might want to refuse because .170 or above has additional DMV problems and .20 or above means 10 days of jail. Be pleasant and do not offer any evidence. Say you do not want to talk without a lawyer, expect to be arrested and choose blood or breath. Also do not drink and drive.

Steven D. Dunnings · Answer

If you refuse to blow, your license will be taken on the spot.  This is why you need to hire an attorney and not listen to your friends.

Mark R. Thiessen · Answer

My advice is absolutely refuse to blow unless it is a Friday or Saturday night.  Because if it is on the weekend, they will take your blood if you refuse and you can beat breath easier than blood.

Gary Moore · Answer

You must  take the test. Refusing the test will double your penalties.

Paula Drake · Answer

You will be admonished of your choice of chemical test and the consequences if you refuse. A refusal, if found to be true, will enhance the penalties both regarding the administrative suspension by the DMV and the court case. They will still be able to charge you with a DUI with Refusal, even without the chemical test. Whether there will be enough to convict you in court with the remaining evidence depends on the specific case.

Daniel Kieth Martin · Answer

A refusal is not an admission, you can refuse the breathalyzer and get your blood drawn. If you refuse both it is an automatic suspension for one year.

Philip Hache · Answer

If pulled over for a DUI investigation and the officer asks you to do a breath or blood test and you refuse, you will likely be charged with a refusal "enhancement."  If it sticks, then there will likely be additional penalties that would include a longer alcohol program requirement and a 1 year license suspension with no restricted license option (for a 1st DUI offense).

Christopher Jackson · Answer

You do not have to take the breath test. However failure to do so will result in an automatic pre-trial suspension of your license and if convicted that refusal will be on your record.

Geoffrey MacLaren Yaryan · Answer

You are only required to take a test if you are arrested for a dui. If you refuse you lose you license for a year.

Theodore Buselmeier · Answer

Refusal of the Preliminary Breath Test is not a crime. It is advisable to both refuse the field sobriety test (like walking the line etc on roadside) and the PBT. They are only designed to make you fail and provide probable cause to arrest you. Call your attorney immediately in such a situation. Refusing the chemical test of blood, urine, or the Intoxilyzer 5000 AFTER the cops have probable cause to arrest and after you are read the implied consent advisory (i.e. "it is a crime if you refuse this test") is a crime and carries more severe penalties.

Kenneth Wincorn · Answer

You cannot be required to blow.

Elizabeth Zwiebel · Answer

Yes, you should refuse. Blowing is definitive and may erase all doubt of a DUI.  Otherwise, an attorney may work on your behalf to reduce a DUI to a lesser offense.

Jonathan Willett · Answer

Every licensed driver in Colorado consents to an alcohol test.  If you refuse, your license is automatically revoked for one year.  If you take a test and you are over .08, you can be eligible for a probationary license in as little as 1 month.  The best advice is to elect a blood test if you're not that buzzed and to only refuse if you are incredibly intoxicated.  Stay away from the breathalyzer.

Justin Olsinski · Answer

Whether you should refuse or not is a complicated question.  If you do refuse, you lose your license for a year.  It can make it easier to beat the DWI charge, but on a first conviction for DWI you can essentially keep driving legally with a limited driving privilege.  Also keep in mind that just because you refuse to do a breathalyzer does not mean the state won't take you to the hospital and draw your blood.  This will give the state your BAC and you will be counted as refusing the test, the worst of both worlds. The short answer is it really just depends on the situation and your record. Some people will say not to refuse your first DWI, but if you already have a conviction you should refuse any subsequent stops and breathalyzers, but there is no clear Yes or No answer.

Eric Lampel · Answer

No.  you are not required to blow into a PAS device, that's discretionary. You are mandated to either blow or give blood at the station - a refusal means automatic license suspension for one year regardless of guilt in criminal court

Jeffrey Pollock · Answer

Neither. A refusal in PA is an automatic 1 yr.

Jeff Yeh · Answer

If you are over 21, the handheld breathalyzer test known as the PAS is optional, and you should always refuse it. What is required is the big machine breath test at the station.

Michael Lynch · Answer

You are not required to submit to a breathalyzer if you are suspected of  drunk driving.  While a refusal does not establish a legal admission,  should the fact that you refused happen to be conveyed to a jury it  would be seen as demonstrating a guilty conscious.  The most important  factor to consider is the DMV implications.  When you received your  drivers license you agreed to submit to chemical testing.  If you refuse  to be tested DMV will suspend your license for a year, regardless of how  your criminal matter is resolved.

Richard B. Huttner · Answer

In Colorado, when you obtain a drivers license, you agree to take a chemical test if asked to do so by law enforcement.  You do not have to take the test but a refusal can be used in several ways against you. First, the department of motor vehicles can revoke your license for one year on the first refusal and two years on a second refusal.  There is no way to obtain a probationary license on a refusal revocation.  Second, in trial, a jury is told about the refusal and may use it as consciousness of guilt.  You don't have to take the breath test.  You have the option of taking a blood or breath test.  The breath test cannot be retested by an independent laboratory.  The blood test can be retested.

Jared Austin · Answer

A refusal to take a PBT by the roadside is not an admission of guilt and cannot be used against you as evidence in court. It is often a good idea to refuse, but not always. It's a case-by-case situation. You cannot be charged with a crime for refusing either. Unless you have a CDL, it is a no-point civil infraction with a $100 fine. However, if you are taken to the station and asked to blow into the Data Master, then you can be charged with points being placed on your license and possible license suspension. If you have been charged, consult with an experienced DUI attorney right away.

Dennis Roberts · Answer

Take it or you lose license for one year

Michael Palumbo · Answer

A refusal is not an admission of guilt. How about this  just don't drink and drive.

Michael Nichols · Answer

It depends on the type of breath test. The roadside, handheld portable breathalyzer: no. The evidential breathalyzer from a box on a table at the police station: yes unless you have a good reason or your license will be suspended for 1 year minimum and 2 years maximum depending on whether you were arrested before and refused.

Kevin O'Grady · Answer

The decision to provide a breath sample with a breathalyzer cannot be decided beforehand.  Under the right legal circumstances a police officer can demand that you provide a breath sample or a blood sample.  If the officer demands that you provide a breath sample he will believe he has met those legal prerequisites.  An attorney may later successfully argue that the officer did not meet the prerequisites.  If you choose to provide a breath sample they will use that against you.  If you choose to not provide a sample, two things can happen in Hawaii.  First your driver's license can be affected and revoked for two years.  Also, you can be charged with a crime for refusing to provide the sample.  Depending on the circumstances an attorney may be able to attack both.  If you want to fight a DUI, hire an attorney that will not plead you out to DUI.

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