Fighting For My Reputation

Should You Refuse to Take a Breathalyzer Test if Asked?

14 May 2019

Luke Warren

What do you do when you've been pulled over because you slid through a stop sign without making a full stop or changed lanes without signaling and suddenly find yourself being asked to take a breathalyzer test?

Most of the time, you probably should comply. There are times, however, you need to weigh your options carefully, first if refusal becomes the better choice. Here are some of those scenarios.

Implied Consent Laws Make Refusal Difficult

Every state now has some form of "implied consent" law which basically says that by accepting a driver's license from the state, you're informally giving government officials (the police) your consent to conduct a breathalyzer test. Since the tests are not physically invasive, no warrant is required.

If you revoke your consent when asked, you give the state the power to revoke or suspend your license for a certain period of time. So, there are definitely negative consequences to refusing a breathalyzer test under any circumstances. It's not a decision to make lightly.

Taking a Breathalyzer Test After Drinking Could Be Worse than a Refusal

If you've actually been drinking, you may be smarter to refuse the breathalyzer exam rather than risk a conviction for driving while impaired (DWI). If you know that you're probably over the legal limit, refusing the breathalyzer exam could buy you time for your blood alcohol content to lower. It may also give your DWI attorney more options for a defense.

By declining the breathalyzer, you're forcing the police officer to justify a warrant for a blood draw—which is an invasive procedure—to a judge. That will take time, during which your body will continue to process the alcohol in your system, hopefully bringing it under the legal limit. 

In addition, if you are charged with a DWI, you can fight the charges by challenging not only the basis for the traffic stop but the basis for the warrant itself. An experienced attorney may be able to get the evidence tossed out. Facing a license suspension for refusing the breathalyzer is ultimately far better than a DWI conviction.

Your State Laws Play an Important Role in the Decision

In some states, refusing the breathalyzer under any circumstances may not help you, however. In states like California, for example, your refusal can be used by the prosecutor as evidence against you in court. The prosecutor can tell the jury that your refusal shows "consciousness of guilt," meaning that you knew you were likely breaking the law and just trying to avoid the consequences. In other states, like Georgia, your refusal to submit to a breathalyzer cannot be used against you in court. That makes breathalyzer refusal a much better option if you happen to be there.

If you ever get put into the position of knowing a breathalyzer test could have devastating consequences for you, it's smart to have a plan. Once you make your decision, let your DWI attorney handle it from there.

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