Do I have to take a breathalyzer if I am stopped and suspected of DUI? 86 Answers as of June 02, 2013

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?

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
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.
Answer Applies to: Michigan
Replied: 11/28/2011
Keyser Law Firm
Keyser Law Firm | Christopher W. Keyser
You are not required to submit to the roadside breath test. An officer asks drivers to take this in order to establish probable cause that you are driving while intoxicated. If you refuse, the officer will almost certainly arrest you but it will be much easier to challenge your case in court by arguing that the officer lacked probable cause to actually arrest you. This is why the best procedure when stopped by law enforcement is to politely refuse to answer any questions, refuse to submit to field sobriety tests and refuse to take a roadside breath test. On the flip side, refusing to take a breath test at the police station IS a crime - a gross misdemeanor punishable by up to 1 year in jail and an automatic license revocation of 1 year.
Answer Applies to: Minnesota
Replied: 11/21/2011
Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
A refusal will result in an automatic revocation of your license. However the prosecution still must prove you guilty beyond a reasonable doubt as to the charge. You should hire an attorney and disclose all facts in detail.
Answer Applies to: New York
Replied: 11/16/2011
Law Offices of Kate Mesic, PA
Law Offices of Kate Mesic, PA | Kate L. Mesic
This is a very good question, a lot of my clients ask me this. You do not have to take the breath test, however, remember that Florida is an Implied Consent state, which means that you have consented to take the breath test when you received your Driver's License. The consequences of not taking the breath test is the potential for the suspension of your license. However, please be aware, that if this is a second refusal, the State can charge it as a separate offense. The other side of this question is what is the benefit of not taking the breath test, and the answer is that a breath test is evidence against you in a DUI case, if the State does not have this evidence they then will try to prove it on another theory - that your normal faculties were impaired.
Answer Applies to: Florida
Replied: 11/15/2011
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
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.
Answer Applies to: California
Replied: 11/14/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    You have already given an "implied consent" to submit a breath, blood or urine sample to law enforcement by accepting your drivers license. You still have a right to refuse to submit a sample, but there are consequences for refusing. The refusal can be the basis for a suspension of your driving privileges and can be used in a trial against you.
    Answer Applies to: Kansas
    Replied: 11/14/2011
    Alfred Law Firm
    Alfred Law Firm | Janice Alfred
    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.
    Answer Applies to: Georgia
    Replied: 11/14/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    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.
    Answer Applies to: Michigan
    Replied: 11/14/2011
    Law Office of Thomas A. Medford, Jr., PC
    Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
    A refusal is not an admission of guilt however if you refuse to take a breathalyzer test the government could suspend your driver"s license for six months even before a trial. An attorney who is skilled in representing people charged with DUI could more fully explain this to you.
    Answer Applies to: District of Columbia
    Replied: 11/14/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    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.
    Answer Applies to: California
    Replied: 11/11/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    Yes.
    Answer Applies to: Michigan
    Replied: 6/2/2013
    Law Office of Michael R. Garber
    Law Office of Michael R. Garber | Michael R. Garber
    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.
    Answer Applies to: Louisiana
    Replied: 11/11/2011
    Rizio & Nelson
    Rizio & Nelson | John W. Bussman
    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.
    Answer Applies to: California
    Replied: 11/11/2011
    The McDonnell Law Firm, PLLC
    The McDonnell Law Firm, PLLC | Patrick J. McDonnell
    You can refuse, but I would not advise it, unless you know you are drunken beyond belief (because a high breathalyzer result of .18% or higher elevates the charge to Aggravated DWI) Refusal has several adverse affects. When you got your driver's license, you agreed that you would submit to a chemical test when requested by a police officer to determine the blood alcohol content of your blood. If you refuse, your driver's license is mandatorily revoked for one year and you are not eligible for a conditional license (as you would be if you took the test, even if intoxicated). Also, almost all courts will not plea bargain the misdemeanor of DWI down to the violation of DWAI (as they often due for driver's who take the test and don't show extraordinary high blood/alcohol levels). That plea bargain prevents you from having no criminal record, only a 90-day suspension instead of a 1-year revocation, and lesser fines. Also, your refusal can be used against you anyway at trial to convict you of DWI. If you were a judge or jury, what would you think the reason was that you refused? Don't listen to your friend!
    Answer Applies to: New York
    Replied: 11/11/2011
    Glass Defense Firm
    Glass Defense Firm | Jason M. Glass
    Technically you do not have to take the secondary breath test if stopped and arrested for a DUI. There are no criminal penalties should you refuse to take the breath test. However, the State may argue at trial that you only refused the test because you knew you would blow over the legal limit. But it would ultimately be up to a jury to weigh that in their decision making. In West Virginia, there is a downside to refusing to take a breath test. The DMV, will revoke your driver's license for one year should you refuse to take the breath test. The only way to reduce this suspension is to enroll in the interlock program after 45 days. If you can deal with the potential loss of license, then there is not really a downside into refusing the breath test. However, if you are like many in West Virginia who cannot go for a year, or even forty-five days, without a driver's license, then take the test, but immediately ask for a blood test afterwards.
    Answer Applies to: West Virginia
    Replied: 11/11/2011
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    You are not required to take a portable breathalyzer at the scene, but if you are arrested, you are required to take a blood, breath, or urine test at the police station.
    Answer Applies to: Minnesota
    Replied: 11/11/2011
    Attorney at Law
    Attorney at Law | Michael J. Kennedy
    Obviously, your friend is not an attorney. Just as you would not allow a chum to perform brain surgery on you unless he is an MD, you should not take legal advice from unlicensed people on a subject more complicated than most brain surgery. If you are arrested for DUI, you are given a choice of a breath or blood test, and if you refuse, you will lose your license for at least a year and will be deemed to have thereby exhibited a consciousness of guilt. And, if they chose to do so, they can tie you down and extract blood, and still deem it a refusal.
    Answer Applies to: California
    Replied: 11/11/2011
    Harrison & Harrison
    Harrison & Harrison | Samuel Harrison
    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.
    Answer Applies to: Georgia
    Replied: 11/11/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    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.
    Answer Applies to: Michigan
    Replied: 11/11/2011
    The Law Office of B. Elaine Jones
    The Law Office of B. Elaine Jones | B. Elaine Jones
    They cannot force you to take the breathalyzer test but if you do not take the breathalyzer test your license will automatically be suspended for 1 year. Because driving is a privilege and not a right, one of the conditions of being granted the privilege of driving is if stopped for suspicion of DUI you consent to a breathalyzer test. If you do not consent and refuse the first time, the consequences are 1 year suspension for a second refusal it is 18 month suspension. However, if you do not submit to the breathalyzer and you look good on the video doing the field sobriety tests, you might be able to beat a DUI charge which is a criminal charge. The refusal is more of a civil charge that takes away your driver's license for a year. Hope this helps you understand. Please drive safely and do not drink and drive. Its cheaper to call a cab.
    Answer Applies to: Florida
    Replied: 11/11/2011
    Law Office of James A Schoenberger
    Law Office of James A Schoenberger | James A Schoenberger
    No, but a refusal will result in a suspension of your drivers license.
    Answer Applies to: Washington
    Replied: 11/11/2011
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    You can refuse a breathalyzer in the field but if arrested you must take a blood or breath test back at the station.
    Answer Applies to: California
    Replied: 2/22/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    You have a right to refuse the breath test, after being arrested for DUI, however, period of statutory summary suspension is doubled for a refusal to take a blow, as opposed to taking the test and failing it. There is a rebuttable presumption of guilt by refusing the test, but not an admission of guilt, by any means. This presumption can be rebutted and you can still be found not guilty, even with a refusal to take the test.
    Answer Applies to: Illinois
    Replied: 11/11/2011
    Law Offices of Louis M. Leibowitz, LLC
    Law Offices of Louis M. Leibowitz, LLC | Louis Leibowitz
    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.
    Answer Applies to: Maryland
    Replied: 11/11/2011
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    If you refuse, you lose your drivers license for a year. Not great advice there.
    Answer Applies to: Michigan
    Replied: 11/11/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    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.
    Answer Applies to: New York
    Replied: 11/11/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    You may, and often should, refuse to answer questions, take field sobriety tests, and blow in a breathalyzer. However, be prepared to be arrested and taken to the station. Once there, you are legally obligated (by virtue of having a California driver's license) to give a breath or blood sample. But if you have deprived the police of any admissions or other test evidence of intoxication, they may not have enough to arrest you or there may not be enough for the DA to issue the case afterwards.
    Answer Applies to: California
    Replied: 11/11/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    A refusal is not an admission of guilt. However, a refusal will result in an automatic suspension of your driver's license. Whether you take the test or not is a decision only you can make. If you are over the legal limit when tested, it is easier for the state or municiplaity to convict you. If you are under the legal limit, significantly, you may help keep yourself from being convicted.
    Answer Applies to: Alabama
    Replied: 11/11/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    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/
    Answer Applies to: California
    Replied: 11/11/2011
    Baner and Baner
    Baner and Baner | Jonathan Baner
    A refusal is, generally, an automatic 1+ year driver's license suspension.
    Answer Applies to: Washington
    Replied: 11/11/2011
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    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.
    Answer Applies to: California
    Replied: 11/11/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    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.
    Answer Applies to: Michigan
    Replied: 11/11/2011
    Reza Athari & Associates, PLLC | Seth L. Reszko
    If you refuse a breathalyzer test and the police believe you were driving under the influence, they will arrest you and conduct a blood test while your in custody. I recommend hiring counsel if you were arrested for a DUI. I hope this information was helpful. Good luck.
    Answer Applies to: Nevada
    Replied: 11/11/2011
    Law Office of Hieu Vu
    Law Office of Hieu Vu | Hieu N Vu
    There are two kinds of breathe test involved. There is a pre-arrest one which does not involve a license suspension if you refuse and there is a post arrest chemical test. The chemical test can either be blood or breathe. You must take one of these and if you refuse then your license will be suspended as a result. However the flip side is if you refuse the pre-arrest, the cops will go about the line of "what have you got to hide" "if it is okay then I will let you go". The field sobriety test are also not mandatory, however not doing them will indicate a consciousness of guilt. On the flip side, if you do them and even if you do them right the cop will write in the report you stumbled all over the place anyways. In my opinion, if I ever got caught, I would skip the field sobriety test, skip the pre-breath test, not tell them what I drank, let them arrest me, pay my towing fees, and finally take the blood test as my chemical test. Some lawyers suggest breathe for post arrest, however I suggest blood. The cop will not know the results and can't exaggerate in his report at the cost looking like a fool when the blood comes back .04.
    Answer Applies to: California
    Replied: 11/11/2011
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    You do not have to take a breathalyzer, but if you refuse you should expect your license to drive to be suspended for 12 months, irrespective of what occurs with the DUI. A refusal guarantees that you will need to retain an attorney (to fight for your license), or risk losing your license for 12 months.
    Answer Applies to: Georgia
    Replied: 11/11/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    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".
    Answer Applies to: Washington
    Replied: 11/11/2011
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    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.
    Answer Applies to: New Hampshire
    Replied: 11/11/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    If the police have probable cause to ask you to take the Intoxilyzer test, then failing to take the test is 1), an offense for which your license will be suspended, and 2) admissible against you at a trial for DUII. If the police don't have probable cause, they can't make you take the test. You are entitled to a reasonable opportunity to consult with counsel before you decide.
    Answer Applies to: Oregon
    Replied: 11/11/2011
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    You are not obligated by law to take a breathalyzer in the field. This is called a PAS - preliminary alcohol screening - test. You are, however, required by law to submit to either a blood test or a breath test at the station or you risk losing your license for a year. However, if you are under the age of 21, you must submit to a PAS in the field.
    Answer Applies to: California
    Replied: 11/11/2011
    Connell-Savela
    Connell-Savela | Jason Savela
    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.
    Answer Applies to: Colorado
    Replied: 11/11/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    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.
    Answer Applies to: Michigan
    Replied: 11/11/2011
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    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.
    Answer Applies to: Texas
    Replied: 11/11/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Your friend is absolutely correct. You have an absolute legal right to refuse a breathalyzer. You have an absolute legal (and constitutional) right to refuse. In fact, you can even refuse to do the field sobriety test always refuse unless you are a pilot. Lets take that one caveat. The FAA has ruled that a refusal is an admission of an alcohol problem and is grounds for suspension of your pilot's certification. So, if you are a professional pilot, beware of this caveat. Otherwise, refusal will result in arrest. But, 99% chance you were going to be arrested anyway, so don't let that one issue scare you. Be honest, would you rather be arrested, post bond, then go to court and the cops have absolutely zero evidence; or would you prefer to be arrested, post bond, and go to court to see yourself looking stupid on a video while the cop talks about how your reeked of alcohol, could not function and "oh by the way, blew into the breathalyzer and the BAC is .10" (anything over .08% is legally drunk). Think of it like this, giving a breathe sample is the equivalent of confession to something. You may or may not confess to being drunk, but you are confessing to something if there is any alcohol in your system and it will be used against you in a court of law. Plus, do not kid yourself, if a cop says "if you blow and the results are less than .08, I will let you go" then he is lying. He has taken the time to stop you, he has already arrested you, you are not going anywhere until booked, and bonded. If he lets you go, it is the same as admitting he was wrong from the start and wasted his time and the government's money and resources. How many times will a cop admit to that? None, that is the answer, none, because no one wants to admit being wrong and particularly when admitting to being wrong can get you sued or fired.
    Answer Applies to: Texas
    Replied: 11/11/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    The answer is "no". However, if there is probable cause to arrest you for a DWI, a refusal to submit to testing is a crime in and of itself and carries with it penalties that may be greater than a DWI offense. Generally, providing a sample once arrested is a better choice. You may and should refuse, however, field sobriety tests.
    Answer Applies to: Minnesota
    Replied: 11/11/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    You must take the test. Refusing the test will double your penalties.
    Answer Applies to: New Jersey
    Replied: 11/11/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    If you are suspected of driving while you are intoxicated the officer can ask you to take a portable "alcosensor" roadside breath test. It is pretty accurate. If you refuse and he suspects that you were drinking or if you admit that you were drinking he will ask you to do field sobriety tests. If you fail the tests you will be handcuffed and taken to the police station. The police will read you the DWI Refusal Warnings. If you had more than two drinks in four hours you should ask to talk to an attorney before you decide to take any breath test, answer any questions, or do the field sobriety tests. If you refuse yo take the breath test your license will be suspended for 6 months and you will pay a $750 civil penalty. You may have to go to trial because the prosecutor may not offer a reduced plea on a refusal case. If you had more than 6 drinks in a four hour period you are going to be about double the .08 limit and you will risk being convicted of a DWI at trial. If you blow over a .18 you will usually be convicted of DWI. An attorney can ask you questions over the phone in order to determine whether you should take the test. If there was an accident, or have prior DWI convictions, or will probably blow over .16 the attorney will advise you to refuse the test. If you injured or killed someone you should not take the test unless you only had two drinks in a four hour period. If it was more than six hours since you had a drink you should take the test.
    Answer Applies to: New York
    Replied: 11/11/2011
    Law Office of Richard Southard
    Law Office of Richard Southard | Richard C Southard
    The questioner is correct. A refusal to comply with an officer's request to submit to a breathalyzer test can be used by a prosecutor in their case against you as an admission of guilt. They will argue that the reason you did not take the test is because you knew that you would fail it if you did. However, that doesn't really address your initial question since it's more of a consequence of your refusal. There is no constitutional right to drive; it is granted by the States. As a result, each State is free to set whatever conditions they want on your ability to exercise that right, so long as they are not discriminatory. Usually these restrictions are done in the name of public safety as this one was. New York State requires that if you are driving on their roads and an officer has probable cause to believe that you are driving under the influence, they can request you submit to a breathalyzer exam. They cannot force you to submit to this test against your will. Writer's Note: In cases involving serious accident or injuries, prosecutors may ask a judge for a warrant giving them permission to take your blood for analysis, even if you refuse to give it voluntarily. In the more common case, your refusal if lawfully conducted can now be used as evidence against you at trial and the state will revoke your driving privileges for at least one year. You are entitled to have a "refusal hearing" at the Department of Motor Vehicles before your license is revoked within 15 days and you should be provided notice by the court clerk.
    Answer Applies to: New York
    Replied: 11/11/2011
    Law Firm of Martin & Wallentine
    Law Firm of Martin & Wallentine | Jerry Lee Wallentine Jr.
    Whether or not to take the breath test is a tough question. I have defended hundreds of DUI cases and sometimes I wish my client took the tests because I could have suppressed it. Other times my client did take the tests and it's simply more evidence the prosecution now has against my client. The downside to refusing the Intoxilyzer 8000 is that it generally means an automatic license suspension for a year. Additionally, if you don't take the test, more than likely the jury will hear that evidence and often make their own assumptions from it. Note, the actual breath test at the police station is different than the breath test out in the field. which is called a PBT. It's generally a wise decision to go ahead and take the PBT because it may give you further indication whether or not to take the Intoxilyzer 8000 at the station. Additionally, the PBT results are generally not admissible in court against you during trial.
    Answer Applies to: Kansas
    Replied: 11/11/2011
    Law Office of Daniel K Martin
    Law Office of Daniel K Martin | Daniel K Martin
    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.
    Answer Applies to: California
    Replied: 11/11/2011
    Law Offices of Paula Drake
    Law Offices of Paula Drake | Paula Drake
    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.
    Answer Applies to: California
    Replied: 11/11/2011
    Law Offices of Stephanie Lee Ehrbright, Esq.
    Law Offices of Stephanie Lee Ehrbright, Esq. | Stephanie Lee Ehrbright
    You can refuse to do the small portable breathalyzer (PBT) that they usually do on the side of the road. If you refuse to do the larger intoxilyzer and/or a blood test it is not an admission of guilt but they will get a warrant and take your blood anyway and the MVD will automatically suspend your license for a year because you refused.
    Answer Applies to: Arizona
    Replied: 3/29/2012
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    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).
    Answer Applies to: California
    Replied: 11/10/2011
    Law Offices of Christopher Jackson
    Law Offices of Christopher Jackson | Christopher L. Jackson
    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.
    Answer Applies to: Kentucky
    Replied: 11/10/2011
    Law Office of Ronald Aronds, LLC
    Law Office of Ronald Aronds, LLC | Ronald Aronds
    You cannot legally refuse to take the breath test. If you do it is a separate offense with penalties similar to a DWI charge.
    Answer Applies to: New Jersey
    Replied: 11/10/2011
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    In the State of Minnesota, refusal to submit to testing is an offense itself (gross misdemeanor) and it results in a license revocation of at least one (1) year. If you are referring to the Preliminary Breath Test (PBT) administered in the field, you have the right to refuse but the refusal itself provides the officer's justification for requesting further, official, blood alcohol concentration testing.
    Answer Applies to: Minnesota
    Replied: 11/10/2011
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    You do not want to refuse because refusal is a crime that is considered an aggravated offense.
    Answer Applies to: Minnesota
    Replied: 11/10/2011
    Law Office of Geoffrey M. Yaryan
    Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
    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.
    Answer Applies to: California
    Replied: 11/10/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Don't waste your time with jailhouse lawyers. It takes a total of seven years to be an attorney. Six months in the local county is a different kind of training altogether. Likewise, don't suffer fools because this friend has given you ridiculously bad advice. When you obtain a license to drive in Washington State, you signed a statement agreeing that you were consenting to a test of your breath or blood any time you are legally arrested for DUI. It's called "Implied Consent" and the courts will enforce it. Basically, you can refuse the test in a non-injury case but your refusal is admissible in court to show consciousness of guilt. Your license would also be suspended for a year. There are very few circumstances when it is advisable to refuse the test. The only one I know of is when you have drunk so much alcohol that you know your Breath-Alcohol Content (BAC) is .15 or over. Even then, you have to balance the known fact of a year without a license and the possibility that you would be convicted at trial which would add jail time to the loss of your license. I won't say you should always blow but I will say that you should almost never refuse to blow. Talk to an attorney when you are facing that decision. The attorney can talk to you and assess your level of intoxication and help you make an intelligent decision. Or you could follow your friends advice and lose your license for a year.
    Answer Applies to: Washington
    Replied: 11/10/2011
    Law Offices of Kenneth Wincorn P.C.
    Law Offices of Kenneth Wincorn P.C. | Kenneth Wincorn
    You cannot be required to blow.
    Answer Applies to: Texas
    Replied: 11/10/2011
    San Diego DUI Law Center
    San Diego DUI Law Center | Rick Mueller
    If you are arrested, yes. If you are on the roadside and being investigated, no. You must do a big breath test machine or blood test if arrested for DUI. But on the roadside, the hand-held PAS gadget can be refused if you are not on probation and not under 21.
    Answer Applies to: California
    Replied: 11/10/2011
    Law Office of David Baum
    Law Office of David Baum | David M. Baum
    Under California Law, you may not refuse to submit to the breathalyzer when requested by an officer to do so. In addition, refusal to blow does not guarantee that you will not still be arrested for a DUI, and will result in a mandatory one year suspension of your driver's license by the DMV.
    Answer Applies to: California
    Replied: 11/10/2011
    The Zwiebel Law Firm, LLC
    The Zwiebel Law Firm, LLC | Elizabeth Zwiebel
    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.
    Answer Applies to: Alabama
    Replied: 11/10/2011
    Jonathan S. Willett Attorney at Law
    Jonathan S. Willett Attorney at Law | Jonathan S. Willett
    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.
    Answer Applies to: Colorado
    Replied: 11/10/2011
    Buselmeier Law & Associates, PA
    Buselmeier Law & Associates, PA | Theodore W. Buselmeier
    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.
    Answer Applies to: Minnesota
    Replied: 11/10/2011
    Attorney Paul Lancia
    Attorney Paul Lancia | Paul Lancia
    You need to protect your legal rights and representing yourself is not the way to do so. Representing yourself is a recipe for problems, if not now, in the future. Retaining a lawyer need not be as difficult as you think.
    Answer Applies to: Massachusetts
    Replied: 11/10/2011
    Law Office of Neal L. Weinstein
    Law Office of Neal L. Weinstein | Neal L. Weinstein
    You do not have to take any field sobriety tests, and should not, these are voluntary. I am referring to the one-leg stand, the walk and turn test, the HGN eye test to follow the pen or finger, counting backwards and the alphabet. Tell the arresting officer that your lawyer advised you not to take the FST's He may order you to take the tests anyway, and tell you that he will be easier on you if you take the tests, but that is not true. Taking the FST's will only be giving him evidence against you, to justify his arrest. If arrested, and no tests, than you have a defense that there was no probable cause for the arrest. You are not required to blow into his face or answer any questions other than your name. Once you stop your car, cut the engine and take the keys out of the ignition, you can drink all you want, and if the officer sees you drinking after being stopped, it ruins his breathalyzer test and gives you a defense for the later test. Once arrested, if you fail to take the breathalyzer test, however, your license will be automatically suspended, but you can challenge that with the secretary of state, but this is hard to win. An inference can be drawn against you that you refused to take the test because you were under the influence.
    Answer Applies to: Maine
    Replied: 11/10/2011
    Law Office of Charles J. Block
    Law Office of Charles J. Block | Charles J. Block
    Definitely take the test if asked
    Answer Applies to: New Jersey
    Replied: 11/10/2011
    The Olsinski Law Firm, PLLC
    The Olsinski Law Firm, PLLC | Justin C. Olsinski
    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.
    Answer Applies to: North Carolina
    Replied: 11/10/2011
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    You do have the right to refuse a breath test. It is not an admission of guilt. If you do refuse, or if you take the test and are above the limit, the officer could institute a license suspension. You can contest this suspension, but you must do it by letter within 10 business days of arrest.
    Answer Applies to: Georgia
    Replied: 11/10/2011
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    You have three choices once arrested for DUI (alcohol) charges: (1) a breath test; (2) a blood test or (3) a refusal. If you chose to refuse a test, the prosecutor gets to use that fact against you if you go to trial (to suggest to the jury you refused because you knew the result would be high). Also, a 'refusal' results in a one year loss of ability to drive in Colorado, while a test with a result over .08 results in a 9 month revocation which can be 1 month of no driving followed by 8 months with an Interlock device on any car you drive. In Court, if you take the case to trial, you probably have a better chance of winning if you refuse a test than if you take a test a result ends up coming back very high. So there are pros and cons to whatever you do, as you can see.
    Answer Applies to: Colorado
    Replied: 11/10/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    You are required to take a test regarding your blood alcohol content. The tests are breath, urine, and blood. You have the right to choose.
    Answer Applies to: California
    Replied: 11/10/2011
    THE LAMPEL FIRM
    THE LAMPEL FIRM | ERIC LAMPEL
    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
    Answer Applies to: California
    Replied: 11/10/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    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.
    Answer Applies to: California
    Replied: 11/10/2011
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    Take it or you lose license for one year
    Answer Applies to: California
    Replied: 11/10/2011
    LynchLaw
    LynchLaw | Michael Thomas Lynch
    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.
    Answer Applies to: California
    Replied: 11/10/2011
    Richard B. Huttner, P.C.
    Richard B. Huttner, P.C. | Richard Huttner
    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.
    Answer Applies to: Colorado
    Replied: 11/10/2011
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    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.
    Answer Applies to: Hawaii
    Replied: 11/10/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    A refusal is not an admission of guilt. How about this just don't drink and drive.
    Answer Applies to: New York
    Replied: 11/10/2011
    Kenyon Law Firm
    Kenyon Law Firm | Todd Kenyon
    Yes in Minnesota, it is a crime and in fact a gross misdemeanor to refuse to take a chemical test if arrested for a DWI related offense. It is one of the few areas of criminal law where you must comply and potentially "incriminate yourself". If after taking the test, the prosecutor's file reveals that the police did not have probable cause to test you, you can fight to keep the results out of evidence. You can lose your driving privileges for a year if you refuse to take a test. It is advisable to contact an attorney before going to court.
    Answer Applies to: Minnesota
    Replied: 11/10/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    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.
    Answer Applies to: Michigan
    Replied: 11/10/2011
    Nichols Law Firm
    Nichols Law Firm | Michael J. Nichols
    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.
    Answer Applies to: Michigan
    Replied: 11/10/2011
    The Law Firm of David Jolly
    The Law Firm of David Jolly | David Jolly
    If you are stopped for DUI you will be asked by the officer to submit to a breath test. This breath test request may occur at the side of the road and later at the police station. The breath test at the side of the road is into a unit called the "portable/preliminary breath test" device (or PBT). This is a completely voluntary test and you must refuse this request. Once at the station you will be asked if you wish to submit to two samples of your breath. If you refuse this test there are harsh consequences - namely, one of license suspension (for a first offense in 7 years). If you believe your BAC is close to 0.08 (or slightly above) you should submit to the breath test. On the other hand if you believe your breath test is going to be very high you may decide to refuse the BAC. If you refuse the BAC the state/city must prove you are "impaired," which is often much more difficult to do than simply proving your BAC was above 0.08. Personally I like defending "refusal" cases in court but it is a slippery slope. Just remember this, if you have had less than 4 drinks over 4 hours, give a breath test sample. For information on your Washington State DUI / Drunk Driving, Snohomish County DUI, King County DUI, Skagit County DUI, Island County DUI or Whatcom County DUI
    Answer Applies to: Washington
    Replied: 11/10/2011
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    Neither. A refusal in PA is an automatic 1 yr.
    Answer Applies to: Pennsylvania
    Replied: 11/10/2011
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