What happens when you refuse a breathalyzer? 52 Answers as of May 30, 2013

I received a minor in consumption ticket at a college party. I agreed to the breathalyzer and blew a .04 and got a ticket for it. What would have happened if I refused the breathalyzer? I asked the police officer and he said I would have to go to the police station. Is this true?

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Law Office of Thomas A. Medford, Jr., PC
Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
If you were driving a motor vehicle, were charged with DUI and refused to take the breath test your driver's license can be suspended for six months.
Answer Applies to: District of Columbia
Replied: 1/26/2012
Michael Breczinski
Michael Breczinski | Michael Breczinski
They would have had to get a search warrant. You had a right to say no.
Answer Applies to: Michigan
Replied: 1/24/2012
Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
If the police have probable cause to believe that you are driving under the influence or are at a .08 BAC they can require you to take a chemical test for alcohol. If you fail to do so, regardless of what the result would have been, your license will be suspended for at least one year. You can challenge this outcome at a DMV hearing but you would have to establish that there was not probable cause for your arrest or you did not understand the requirement.
Answer Applies to: California
Replied: 1/23/2012
Law Office of Tracey S. Sang
Law Office of Tracey S. Sang | Tracey Sang
If you refuse then the police have the option of arresting you and taking you to the station. However, without that breathalyzer evidence, they may decide not to arrest you if they don't have enough other supporting evidence. So by refusing you roll the dice and take your chances.
Answer Applies to: California
Replied: 1/23/2012
Dennis Roberts, a P.C.
Dennis Roberts, a P.C. | Dennis Roberts
Yes.
Answer Applies to: California
Replied: 5/30/2013
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    There is no law that requires you to take the breath test. However, if you are charged with operating a motor vehicle while under the influence and refuse the breathalyzer, the Registry of Motor Vehicles (RMV) can suspend your license for varying amounts of time depending on whether it is a 1st, 2nd, 3rd, etc., offense. Lawyers often advise people not to take the breathalyzer because without it as evidence, it is far more likely to get a Not Guilty at trial. If you are found not guilty at trial, there is a presumption that the court should order your license reinstated, even if you refused the breathalyzer. It's not an easy black and white answer.
    Answer Applies to: Massachusetts
    Replied: 1/20/2012
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    The hand held breathalyzer is called a PBT or preliminary breath tester. Refusal to take a requested PBT test is an infraction punishable by only a fine.
    Answer Applies to: Kansas
    Replied: 1/20/2012
    Edward  D. Dowling IV Attorney at Law
    Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
    Generally refusal to take a breathylyzer test results in automatic suspension/revocation of drivers license. The police officer does have the authority to arrest you and bring you to the precint.
    Answer Applies to: New York
    Replied: 1/20/2012
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    The breathalyzer is not necessary for you to be arrested for minor in possssion or consumption. The breathalyzer only tells how much you have had to drink. The officer's opinion that you had an ordor of alcohol about your person is the only proof needed for a conviction.
    Answer Applies to: Alabama
    Replied: 1/20/2012
    The Law Office of Cindy Barton
    The Law Office of Cindy Barton | Cindy Barton
    If you were driving and you refused to blow, yes you would have been arrested and taken to the station. If you refused there your license would have been automatically revoked. If you were just at a party where drinking was, you don't have a obligation to blow unless you are under the legal drinking age and the policeman has probable cause to believe that you were actually drinking.
    Answer Applies to: Utah
    Replied: 1/20/2012
    The Law Offices of Laura A. Walker | Laura A. Walker
    Nope, your only required to blow into an intoximeter when you are accused of driving while intoxicated, its called implied consent, there is no requirement any other time. w
    Answer Applies to: Wisconsin
    Replied: 1/20/2012
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    If you had refused, then the officer could have sought a warrant for a blood draw. This would have started at the police station, and you could have been taken to a hospital for the draw. So, yes, you could have been take to the police station. Whether or not they would have gone through the trouble is a different question altogether.
    Answer Applies to: Michigan
    Replied: 1/20/2012
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    The police officer is correct in that he probably would have arrested you and taken you to jail. But even more serious, regardless of whether or not you are convicted of a DUI/minor consumption, failure to provide a breath test could have resulted in your loss of your driver's license for one year.
    Answer Applies to: Washington
    Replied: 1/19/2012
    Law Office of Mark Bruce
    Law Office of Mark Bruce | Mark Corwin Bruce
    Yes. When you are licensed in California you agree to submit to a chemical test upon demand of a police officer. If you do not, the penalties for DUI can go up and your license can be suspended or revoked for a year.
    Answer Applies to: California
    Replied: 1/19/2012
    Law Office of Christopher G Humphrey PC | Christopher G Humphrey
    That is an interesting question. Officers in Wyoming can arrest anyone for any misdemeanor they believe is being committed ib their pressence. I would jave to guess you would be arrested and then released in the morning. The only evidence against you would be the officer's testimony that he smelled alcohol on you. If the officer is really ambitious, he may ask for a warrant for your blood. I have never seen this type of case before. You do not have to blow in the PBT, but you may be arrested or cited anyway.
    Answer Applies to: Wyoming
    Replied: 1/19/2012
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    Since you were not driving, there probably would have been no penalty. However, the officer, based on probable cause could have sought a search warrant to draw your blood for analysis.
    Answer Applies to: Michigan
    Replied: 1/19/2012
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    Since you were not driving the police officer could not force you to take a breath test by giving you the DWI Warnings that state that if you refuse the test your license will be revoked for six months. He can charge you with underage drinking, public intoxication, or disorderly conduct and he could have arrested you, brought you to Central Booking, and you would be arraigned 24 hours later in front of a judge. He gave you a break and just gave you a summons to make a court appearance. You will get an ACD dismissal and have no criminal record. It is not a good idea to drink or use drugs in public, especially if you are a minor. When you are on the street late at night you are asking for trouble with the police.
    Answer Applies to: New York
    Replied: 1/19/2012
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    No. You could have refused.
    Answer Applies to: New York
    Replied: 1/19/2012
    Gutin and Wolverton
    Gutin and Wolverton | Harley Gutin
    A law enforcement officer first has to arrest you for Driving Under the Influence and then request a "breathalyzer" test. If you refuse the refusal can be used against you at trial and if a second refusal the refusal itself may result in a Misdemeanor charge of "refusal" being charged against you in addition to a new DUI charge.
    Answer Applies to: Florida
    Replied: 1/19/2012
    Law office of Robert D. Scott | Robert Scott
    Yes! If you have a driver's license or learner's permit, upon refusal of the breatholyzer, your privilege to drive may be suspended for 6 months or more.
    Answer Applies to: Maryland
    Replied: 1/19/2012
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    Maybe / maybe not. It is up to departmental policy. It does not take a breath test for an officer to ticket or arrest you for MIC - it can be best only on what he smells.
    Answer Applies to: Texas
    Replied: 1/19/2012
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    You could have refused. Had you done so the officer should have just issued you a citation a let you go. Without an admission of drinking and no test result it would have made the taste difficult to prove. Officers are supposed to just issue citations rather than arrest people on misdemeanors if there is no reason to believe the person wouldn't show up to court to answer to the citation.
    Answer Applies to: Minnesota
    Replied: 1/19/2012
    Robert Mortland
    Robert Mortland | Law Office of Robert Mortland
    If you did not blow, this evidence can be used as conclusive evidence that you were under the influence. Further, the police would have been able to arrest you and take you into custody.
    Answer Applies to: California
    Replied: 1/19/2012
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    You would not have provided evidence against yourself. It is always best to refuse unless your driving.
    Answer Applies to: Nebraska
    Replied: 1/19/2012
    Robert Valles and Associates P.C.
    Robert Valles and Associates P.C. | Robert Valles Jr.
    All that happens is your license is suspended for 6 months.
    Answer Applies to: Texas
    Replied: 1/19/2012
    Raiser & Kenniff, PC
    Raiser & Kenniff, PC | Steve Raiser
    I am assuming you were driving. Sounds like the PO was asking you to blow into a Portable Breath Test Machine. He must have felt he had enough based on his observations to believe you were intoxicated. By you blowing into the machine you basically proved to him that you were not.
    Answer Applies to: New York
    Replied: 1/19/2012
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    Under the implied consent law, if you refuse to give a breathalyzer when requested, your license can be suspended for up to one year. But you don't indicate you were driving, so the implied consent law might not have applied.
    Answer Applies to: Georgia
    Replied: 1/19/2012
    Vargas Law Office LLC | Ronnie Ismael Vargas
    Refusal would have meant you would have been cited for a prohibited PAC which carries an automatic driver's license suspension and possible been charged with an OWI.
    Answer Applies to: Wisconsin
    Replied: 1/19/2012
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    MIP are no tolerance. So even the cop saying that you smelled like alcohol would be enough for an MIP. If you refused, you'd probably get the same thing, but it may be easier if you wanted to fight it at a trial if you refused. Hire an experienced attorney in your area and they can probably get you deferred adjudication probation.
    Answer Applies to: Texas
    Replied: 1/18/2012
    Mitch Foster Law
    Mitch Foster Law | Mitchell T. Foster
    If you refused they would have needed a search warrant.
    Answer Applies to: Michigan
    Replied: 1/18/2012
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    You most likely would have been brought to the police station and asked to take a breathalyzer at the station. If you refused again you could have still been charged with minor consumption but you most likely would have been held in jail until court.
    Answer Applies to: Minnesota
    Replied: 1/18/2012
    Myles Hahn III Attorney at Law | Myles Hahn III
    The officer forms his first opinion of how intoxicated you are. He then asks for a breathalyzer in order to support his opinion and complete his investigation. Consequences of refusing the breathalyzer vary from school to school and in different jurisdictions. It is possible to refuse a breathalyzer and be arrested anyway.
    Answer Applies to: Illinois
    Replied: 1/18/2012
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    If you were not driving and the breath test you took was portable, it was not a Breathalyzer. It was probably a PBT or portable Breath Test which is not admissible in court and has no consequences other than that the prosecutor may use that information in court.
    Answer Applies to: Washington
    Replied: 1/18/2012
    The Short Law Group, P.C.
    The Short Law Group, P.C. | Shawn Kollie
    A breathalyzer test is considered a form of 'search or seizure' by the police. Typically the police will need a warrant to 'search or seize' anything from an individual. However, a warrant is not required when someone consents to a breathalyzer. An individual has every right to refuse to give any sample of their breath without first being presented with a valid warrant. Declining to submit to the voluntary test/search is NOT an admission of any wrongdoing, and does not add or subtract anything from the court's analysis of your guilt or innocence. With regards to taking you 'back to the station', this may be something an officer is allowed to do in an attempt to have you breathe into an official Intoxilizer, and not the field units many officers have to test your breath. Again, it is your right to decline to submit to any search or seizure such as an alcohol breath test. It is probably best to have an experienced criminal defense attorney to go over the facts of your specific case to determine any defenses, or mitigate any damage.
    Answer Applies to: Oregon
    Replied: 1/18/2012
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    Automatic 1 yr. Dr. Lic. suspension in PA.
    Answer Applies to: Pennsylvania
    Replied: 1/18/2012
    Law Offices of Scott C. Athen | Scott Carl Athen
    Taking a portable breathalyzer test may have been smarter, because they are inadmissible in court. You should still speak to an attorney about the citation.
    Answer Applies to: Maryland
    Replied: 1/18/2012
    LynchLaw
    LynchLaw | Michael Thomas Lynch
    It could very well have been the truth. If the Officer had sufficient probable cause to arrest there would have been nothing stopping him from arresting you ad taking you into custody. However, if you had registered 0.00% BAC he would have most likely released you. However, typically it is when the Officer does not think he has enough that he asks for consent to search, or in your case ask for a breath test.
    Answer Applies to: California
    Replied: 1/18/2012
    Rizio & Nelson
    Rizio & Nelson | John W. Bussman
    As long as you were not driving, you have no obligation to submit to the breath test. You would have been arrested anyway, though.
    Answer Applies to: California
    Replied: 1/18/2012
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    You may still be charged for underage consumption if the officer has probable cause to believe you consumed alcohol.
    Answer Applies to: Minnesota
    Replied: 1/18/2012
    Law Office of Matt Vititoe
    Law Office of Matt Vititoe | H Matthew Vititoe
    An officer can't just arbitrarily order you to take a breathalyzer test. There is a case out of Troy, Michigan that states it is unlawful for the police to obtain a Preliminary Breath Test (PBT) from minors without a warrant. (See City of Troy v. Chowdhury, 775 N.W.2d 845 (2009), 285 Mich. App. 509). In the Troy, MI case, a group of officers detained underage drinkers and made them do PBT tests. The officers relied upon their local ordinance that permitted them to do so. The defense attorney, who argued against the actions of the police officers, showed the Troy court that taking of a PBT is a search under the Michigan and U.S. Constitutions and that the officers violated the constitutional protections against unreasonable searches when they required the minors to take PBTs without consent. The Troy court agreed and found that the ordinance was unconstitutional; in doing so, it relied upon two federal cases from the Eastern District of Michigan: Spencer v Bay City, 292 F Supp 2d 932 (ED Mich, 2003); Platte v Thomas Twp, 504 F Supp 2d 227 (ED Mich, 2007), which pertained to ordinances that were substantially similar to the Troy ordinance. The City of Troy case was ultimately upheld by the Michigan Court of Appeals. Bottom line: Police officers must seek and obtain a valid search warrant before administering a PBT to a minor. If you believe you have been unlawfully charged for a MIP under any local laws in Michigan, contact an attorney right away.
    Answer Applies to: Michigan
    Replied: 1/18/2012
    Germaine & Blaszka, P.A.
    Germaine & Blaszka, P.A. | Donald L. Blaszka, Jr.
    In New Hampshire, if you refused the breathalyzer test or portable breath test for a minor in possession of alcohol (or internal possession as it is commonly referred to) offense (not a DWI/DUI), there are no other consequences. From the basic facts that you provided, it appears that you would have still charged with the offense despite what the police officer informed you.
    Answer Applies to: New Hampshire
    Replied: 1/18/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    No that is not true. You weren't driving a vehicle, so you are not required to blow. Consider hiring an attorney, because this is a relatively minor charge and oftentimes an experienced attorney can get it dismissed.
    Answer Applies to: California
    Replied: 1/18/2012
    Law Office of Andrew Roberts
    Law Office of Andrew Roberts | Andrew Stephen Roberts
    At this point you have to deal with the charge at hand. Your license can be suspended as a result of your being a minor. You might want to have an attorney represent you.
    Answer Applies to: California
    Replied: 1/18/2012
    Aaron Black Law
    Aaron Black Law | Aaron Black
    If you refused the breathalyzer that the officer pulled out of his car ( the little hand held one) nothing will happen. He may have arrested you though. You need to get a lawyer. My position is that the breathalyzer is not admissible in court.
    Answer Applies to: Arizona
    Replied: 1/18/2012
    Ellman and Ellman PC
    Ellman and Ellman PC | Kevin Ellmann
    If this is just an MIP (and not a DUI or DWAI) you have every right to refuse a breathalyzer without penalty. They might threaten to "bring you into the station" but ultimately that would just mean holding you until releasing you to a parent as opposed to releasing you from the scene, but there are no penalties for asserting your rights to refuse to incriminate yourself (by consenting to a warrantless search).
    Answer Applies to: Colorado
    Replied: 1/18/2012
    Connell-Savela
    Connell-Savela | Jason Savela
    About all they can do is arrest you or give you a summons. There is no requirement that you give evidence against yourself, but cops often treat you different if you do not make their job easier. I would refuse the breath test.
    Answer Applies to: Colorado
    Replied: 1/18/2012
    Fabian & Associates, Inc.
    Fabian & Associates, Inc. | Stephen G. Fabian, Jr.
    In Oklahoma, you are not required to take a breath test in a minor in possession or for underage drinking, unless you were operating a motor vehicle.
    Answer Applies to: Oklahoma
    Replied: 1/18/2012
    Baner and Baner
    Baner and Baner | Jonathan Baner
    Actually it is an interesting question. I don't know the answer off top of my head, and you might have decent grounds to suppress the test if you asked that before you were tested. See in Washington there is an "implied consent" to take breath tests while driving. There would not be any implied consent for simply living here or being a minor. It's an interesting question though.
    Answer Applies to: Washington
    Replied: 1/18/2012
    Law Office of Richard Southard
    Law Office of Richard Southard | Richard C Southard
    On a refusal, you may be charged with DWI because your refusal can be used as evidence against you. You also face revocation of your driving privileges based on your refusal.
    Answer Applies to: New York
    Replied: 1/18/2012
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