Why You Should Think Twice Before Refusing a Breathalyzer Test

Woman holding breathalyzer machine up while female police officer leans in her car window

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If you regularly get behind the wheel while drinking alcohol, chances are you will someday be stopped by the police. You will probably be asked to take a roadside sobriety test, a breathalyzer test, a saliva test, a blood test, or even a urine test in some cases. Your initial reaction might be to do nothing that would incriminate yourself. After all, this is the United States. We all have the Fifth Amendment right against self-incrimination, correct?

You may also be thinking that if the police haven't conducted a breath test or blood-alcohol test, they would have no evidence to use in court to prove that you are intoxicated, so you would never get a conviction, and that all you have to do is stick to your story that you only had a couple of drinks. You would be wrong on both counts.

Implied Consent Laws

The legal point that you may be overlooking is the fact that driving in this country is not a legal right, but a privilege. That privilege is granted to you by the state in which you live after you meet certain conditions, such as passing a written and/or driving test.

You are also not granted the privilege to operate a motor vehicle unless you agree to abide by certain regulations and conditions. In all 50 states, those conditions include something called "implied consent." You may not have noticed, the last time you applied to renew your driver's license, but you signed an agreement in which you promised to abide by the implied consent laws of your state. It was there, in the fine print.

What Implied Consent Means

Typically, most states implied consent laws include:

  • Carrying a driver’s license and proof of insurance and producing them when asked by law enforcement.
  • Consenting to blood, urine, saliva, and/or breath tests to determine your blood-alcohol content if asked.
  • Performing field sobriety tests when requested.

In some states, the implied consent terms are printed on the back of your driver's license itself.

You Can Still Refuse to Take Sobriety Tests

Regardless of what the implied consent laws are in your home state, you are subject to those in the state in which you are driving.

Even though you agreed to abide by these conditions when you applied for a driver's license, you can still refuse to take the sobriety tests. However, in every state, refusing to submit to such testing is itself a violation that carries its own penalties, regardless of whether you are convicted of drunk driving or not. In 10 states, refusal to submit to testing can result in criminal penalties as well as civil ones.

The 2016 Supreme Court decision of Birchfield v. North Dakota allows people to refuse warrantless blood tests without being criminally punished, since blood tests can be considered invasive. However, refusing to submit to a breath test can still be punished.

It's the job of our law enforcement officers to keep the roads safe for everyone. If the officer believes that you are intoxicated and a danger to yourself and the public, they can arrest you just because you refused to take the tests.

Refusal Can Mean Immediate License Suspension

In most states, the officer can immediately confiscate your driver's license as an administrative, not criminal action, because you broke your written promise to submit to such testing when you applied for that license.

You may be thinking that is a violation of your right against double jeopardy and being punished for the same crime twice. But in most states, taking away your driving privileges has been set up as an administrative function of the Department of motor vehicles and not a function of the criminal court.

After all, the Department of Motor Vehicles granted you those driving privileges, so it can take them away. If you refuse the officer's request for sobriety testing, your license can be immediately suspended for 90 days up to two years, depending on the laws of the state in which you are arrested. You may also have to pay fees and penalties before your license can be returned.

Increased Fines and Penalties

Again, you may be thinking that you can live with the license suspension and other penalties involved in refusing to be tested, but you need to avoid a DUI conviction at all costs, so refusing to take the test will eliminate any evidence against you in a court of law.

That's not exactly correct either. Courts will convict drivers of driving under the influence based on the officer's observations both prior to pulling you over and during the arrest. The officer's statements that they smelled alcohol or that you were slurring your words or unsteady on your feet can all be considered evidence.

And don't forget that most police cruisers today are equipped with dash cams. Many a DUI attorney has had to back off trying to negotiate a plea deal after seeing the video of their client during the arrest.

No-Refusal Policy

In the crackdown on drunk driving, some states have now developed "No Refusal" strategies, in which they can obtain immediate search warrants to obtain blood samples from drivers who refuse to take breathalyzer tests.

During targeted periods, usually around holiday weekends, judges remain on-call to issue search warrants on the spot to streamline the due process procedures. The result has been more guilty pleas and fewer DUI trials.

The Refusal Itself Is Evidence

In some jurisdictions, the fact that you refused to take the requested tests is itself evidence of your guilt. Your refusal to submit to blood-alcohol concentration testing is seen in some states as an admission of guilt that can be used against you at trial. In all states, if you refuse to be tested, the penalties will be more severe if you are eventually convicted than they would have been if you had submitted to the tests in the first place.

The bottom line is, refusing to take the sobriety tests is going to cost you more in the long run—larger fines and fees, longer license suspension, and possibly longer jail time if it's not your first offense. If you are stopped, go ahead and take the tests. Who knows? If you only had a couple, you might pass.

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6 Sources
Verywell Mind uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
  1. National Conference of State Legislatures. Traffic Safety Trends: State Legislative Action 2019.

  2. Birchfield v. North Dakota. No. 14-1468. Supreme Court of the United States. 2016.

  3. Foundation for Advancing Alcohol Responsibility. National Drunk Driving Statistics Map.

  4. Youngentob K. Changing lanes: the criminalization of refusal in DUI laws. Vand L Rev. 2017;70:121.

  5. National Conference of State Legislatures. Criminal or Enhanced Civil Penalties for Implied Consent Breath Test Refusal.

  6. Foundation for Advancing Alcohol Responsibility. Improving DUI System Efficiency: A Guide to Implementing Electronic Warrants.