Refusing to Perform a Breathalyzer or Provide a Blood Sample

Refusing to take a test may deprive the prosecution of damning evidence, but it will also usually result in a license suspension. In some situations, a refusal post-arrest can be overcome: a non-consensual blood test may be allowed in rare circumstances.

When a police officer pulls over a driver suspected of driving under the influence of drugs or alcohol (DUI or DUID), the officer will often ask the driver to breathe into a machine or provide a sample of blood, urine, saliva, or hair for chemical testing to determine whether drugs and alcohol are present in the driver’s body. In most states, drivers who refuse to cooperate can have their licenses suspended. If you are asked to perform a breath test or other chemical test, should you? Even legal experts disagree, and there can be serious consequences either way.

Getting Pulled Over

If you are pulled because a police officer suspects you of driving under the influence, you may be asked to perform a field sobriety test, such as walking in a straight line or reciting the alphabet backwards. Usually, you can refuse to perform these tests without serious immediate consequences. For more information on a driver’s right to refuse physical or verbal field sobriety tests, see Refusing to Perform a Field Sobriety Test. However, if you refuse any request made by a police officer, you should do so politely. For more general information on getting pulled over, see Your Rights When Dealing With the Police.

Chemical Testing

Police may also request a chemical test. In order for a police officer to perform a chemical test, the driver must provide a breath sample or a blood sample. Less commonly, police will ask for a saliva, urine, or hair sample. The sample is then tested – either on the spot or later, in a lab – and the test determines whether alcohol or some other drug is present. Officers can request chemical testing either during the traffic stop or at the police station or a hospital.

Breath tests

Breath tests are considered chemical tests. Breath tests measure the amount of alcohol in a person’s breath and, based on that measurement, estimate the person’s blood-alcohol content (BAC). There are two types: roadside breath tests and Breathalyzers. A roadside breath test is also called preliminary breath test or portable Breathalyzer. It is performed using a handheld device that detects the presence of alcohol in the breath. It is often used before an arrest is made and is somewhat less accurate than a non-portable Breathalyzer. The latter test often occurs at the police station, using a machine that is considered more accurate.

Blood tests

Blood, urine, saliva, and hair samples can also be tested to ascertain a driver’s blood alcohol level or to look for the presence of drugs. Although samples are usually taken at the police station or hospital, these tests may be requested before or after an arrest is made.

Refusing to Provide a Sample for a Chemical Test

In many states, drivers who refuse to submit a sample for a chemical test after arrest, including a Breathalyzer, will automatically have their driver’s licenses suspended or revoked, under the state’s “Implied Consent Law.” This law requires every driver, as a condition of receiving a driver’s license, to agree to take chemical tests if arrested for driving under the influence. The law further provides that any refusal will result in suspension or revocation (regardless of the outcome of any underlying DUI or DUID prosecution). The length of the suspension varies from state to state, but one year is the most common term.

Implied Consent Laws occasionally also apply to all chemical tests, including roadside breath tests. In these states, any time an officer asks a suspect to take a breath test or provide a blood or urine sample, the person’s license can be suspended if he or she refuses.

In some states, a driver cannot be penalized for refusing a test unless the officer first informs the driver that the driver has no right to refuse. In addition to a license suspension, in some states the officer can also testify about a driver’s refusal to provide a sample if the case later goes to court, and the judge or jury is entitled to consider this refusal as evidence of intoxication.

Experts Disagree

Some criminal defense attorneys believe you should always submit to a chemical test. They point to the fact that police can rely on other evidence, such as slurring, glassy eyes, poor driving, and the smell of alcoholic beverages to support the arrest and conviction. Under this theory, there is no upside to refusing the test because you may be convicted based on other evidence or based on your refusal to take the test. The test can also be challenged in court and a lawyer may be able to get the results thrown out. By agreeing to the test you also avoid an automatic driver’s license suspension, which can be a real hardship for many people.

Other criminal defense attorneys believe that you should always refuse to submit to a test if you believe that you will not pass, because there is nothing to be gained by offering up evidence that the prosecution can use against you. Although your license will be suspended, in some states you can apply for a restricted driver’s license while your license is suspended, which can allow you to drive to or from work or school; and you may avoid a DUI conviction.

In many states, increased penalties apply if your BAC is very high (the level varies from .15 to .20 depending on state law). Some defense attorneys recommend refusing a test if you believe that your BAC is very high, because without a chemical test result it will be hard for the prosecution to prove a high BAC and you may be able to avoid more serious penalties. Ultimately, you will have to decide for yourself whether to submit to a chemical test. Before you agree or refuse to take a test, make sure you know what kind of test is being offered and what are the consequences if you refuse.

Forced Blood Samples

Previously, in any case where DUI was suspected, officers in some police departments would take a blood sample for chemical testing without the driver’s consent and without a warrant. In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Supreme Court concluded that that officers cannot routinely take forced blood samples in all suspected DUI cases, and that taking a blood sample without a warrant cannot be justified merely because alcohol dissipates rather quickly over time. Rather, the situation must be considered on a case-by-case basis and officers can take a blood sample without a warrant and without a person’s consent only if there are special facts that make it necessary to do a blood draw before too much time passes and the alcohol in the driver’s blood dissipates. For example, if a driver has been seriously injured, and the officer needs to do the blood draw immediately before transporting the driver to the hospital for medical treatment, then an officer can do a blood draw without a driver’s consent.

Getting Legal Advice and Representation

In most states, a driver is not permitted to talk to an attorney before deciding whether to provide a sample for a chemical test, and what kind of test to take. As you have learned, states can impose serious consequences when drivers refuse to cooperate. If you are charged with a DUI, you will benefit from having an experienced attorney explain the laws in your state and how the case is likely to be treated in your community. Some consequences may be unavoidable, such as a driver’s license suspension, but you will still benefit from the advice of an attorney.