Will not taking the breath analyzer make my case worse? 55 Answers as of June 02, 2013

What will happen to me if I refuse to take the breath analyzer? The officer still issued a ticket even if I did not take the test. Will it make my case worse?

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
With any criminal charge, I strongly urge you to get a lawyer. There can be long-term consequences and you are presumed innocent until proven guilty. Simply because a person is charged does not mean that they are guilty of any offense. The prosecutor must prove guilt beyond a reasonable doubt. You have a right to legal counsel and should not be afraid to exercise your rights. Ultimately, there are sanctions for refusing certain tests which will impact a person's ability to drive. However, in terms of the underlying criminal charge, the answer depends on the remaining proofs the prosecutor intends to use.
Answer Applies to: Michigan
Replied: 6/11/2012
Gregory Casale Attorney at Law
Gregory Casale Attorney at Law | Gregory Casale
It won't hurt your case at all. The DA cannot introduce evidence that you refused to take any test. So it is one less piece of evidence that the Commonwealth can use to prove their case. It should help you. I love cases with no Breath Test. It allows me to challenge all indices of impaired ability to drive as merely "opinion".
Answer Applies to: Massachusetts
Replied: 3/21/2012
Law Office of Michael R. Garber
Law Office of Michael R. Garber | Michael R. Garber
Not taking the breath test gets your license suspended. It does not create a presumption of guilt but it can be used as evidence that you knew you'd fail the test unless you can come up with a reasonable explanation. A lot of people tell others to never take the test. It might be your explanation why you didn't take it.
Answer Applies to: Louisiana
Replied: 3/16/2012
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
Refusal to take a test will result in a suspension of your drivers license. The state will need to prove your impairment by other means since there is no chemical test.
Answer Applies to: Kansas
Replied: 3/16/2012
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
If you refuse to take the breath test it is an automatic 60 day suspension of your driving privileges. In some occasions it is preferable not to take the tst as a result that shows BAC exceeding .08 is an indication of intoxication. In other cases, where a person has had little or almost nothing to drink, the BAC reading may be so low that the prosecutor or the Court is likley to cut a break.
Answer Applies to: Alabama
Replied: 3/16/2012
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    In all likelihood, yes. By refusing to take the breath test, even if you are not convicted of the DUI, Department of Licensing will suspend your license for at least one year. This is separate from your criminal case. In your criminal case, the fact that you refused to submit to a breath test can also be used as "evidence against you". The prosecutor may inform the judge or jury, that you refused to take the breath test when asked. With this information, how do you think a judge or jury will take this information? Most likely, infer that you refused because you knew you were drunk and would fail the test. This inference is completely appropriate if it is supported by the other facts of your case i.e. your driving, your interaction with the arresting officer. Also was there a dash cam in operation videoing the stop and arrest?
    Answer Applies to: Washington
    Replied: 3/14/2012
    Toivonen Law Office | John Toivonen
    In Michigan the Implied Consent law requires that drivers give their consent to alcohol and drug testing. If the state can prove that you did not consent to the test, you will lose you license for one year.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    The Sarbaugh Law Firm
    The Sarbaugh Law Firm | Bruce W. Sarbaugh
    Whether a refusal to submit to the Intoxilyzer breath test will help or hurt your case depends upon the factual circumstances under which you were arrested. While the absence of a specific blood/alcohol level may actually help you in your criminal defense case, a refusal to submit to a breath (or blood) test after a lawful arrest for DUI, will result in the loss of your driving privileges for one year. If the officer has sufficient evidence to arrest you for DUI, that same evidence would allow the officer to issue you a ticket. However, there is a much higher standard of proof required to find you guilty of DUI and only an experienced DUI attorney can advise you as to whether there would be sufficient evidence in your specific case for a jury to convict you of the charge.
    Answer Applies to: Colorado
    Replied: 3/14/2012
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    No, it just results in an automatic one year drivers license suspension. It has nothing to do with the underlying DUI case.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    Yes. For one thing you will lose your license for one year whether you are guilty or not. And second the court will not be happy and you could receive a harsher sentence. Three, if you go to trial the jury will be told you refused and they can take that into consideration in deciding if you are guilty.
    Answer Applies to: California
    Replied: 3/14/2012
    Hynum Law Office, LLC
    Hynum Law Office, LLC | G. Wayne Hynum
    If you refuse to take the breath test your driver's license is suspended for 90 days, if you do not have a previous DUI conviction, or 1 year if you do have a previous DUI conviction. On the other hand, not taking the breath test could make it more difficult for the State to convict you of the DUI. If you refuse to take the breath test the State has to prove that you were DUI by testimony from the arresting officer and other witnesses who were present, that you were acting intoxicated, had slurred speech, could not walk straight, etc. If the patrol car has a camera, the video from the camera could also help convict you, but depending on what it shows, it could also help you prove that you were not DUI.
    Answer Applies to: Mississippi
    Replied: 3/14/2012
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    A refusal to test will result in at least a 45 days license revocation, so it does make your case worse. Now having said that a person with a very high level of alcohol intoxication is put in a much worse circumstance if the test result is above a .180% because the offense would carry mandatory jail.
    Answer Applies to: Nebraska
    Replied: 3/14/2012
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    Refusal of a chemical test will result in a one year suspension of your driving privileges by the secretary of state. You should consult with an attorney who can better advise you of your situation.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Law Offices of George Woodworth & Associates
    Law Offices of George Woodworth & Associates | George Woodworth
    Yes, you may lose your driver's license. You need to retain an experienced criminal defense Attorney to help you evaluate the problem, plan your Court strategy, and then carry out the plan accordingly.
    Answer Applies to: California
    Replied: 3/14/2012
    McClendon Owens Melia McBreen LLP
    McClendon Owens Melia McBreen LLP | Richard L. McBreen III
    Unfortunately, the answer is: it depends. This is because depending on a few specific circumstances, your refusal may or may not be allowed as evidence against you. If allowed to be presented at trial, the prosecutor will argue that your refusal is evidence of your guilt. However, your refusal also eliminates a crucial piece of the state's evidence, which is the breath test result. Depending on the other facts surrounding your case, it may be of great benefit to you that you refused, and your attorney may be able to help you expose that shortcoming at trial.
    Answer Applies to: Oregon
    Replied: 3/14/2012
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    If you refuse the breath test your license will be suspended for 6 months and you will pay a $750 fine. If you had more than 6 drinks you are probably going to blow a .16 or more, which is twice the legal limit of .08. That could lead to a DWI conviction as opposed to a DWUI violation.
    Answer Applies to: New York
    Replied: 3/14/2012
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    Yes, refusal to test is an aggravation circumstance and enhances the level of the offense.
    Answer Applies to: Minnesota
    Replied: 3/14/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    There is a rebuttable presumption of guilt by refusing to take the breath exam, however, this can be fought, and in many cases, will actually be beneficial to you. I cannot advise you to take or refuse the machine, it is probably better to do do when you have been drinking heavily, or have prior DUIs.
    Answer Applies to: Illinois
    Replied: 3/14/2012
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    You get an automatic 1 yr. suspension for a refusal.
    Answer Applies to: Pennsylvania
    Replied: 3/14/2012
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    Well you will get a suspension just for not taking the test unless you can convince a administrative law judge tht the cop was wrong in asking you to take the test, and the suspension is often longer than if you took the breath test and got convicted. You need a good attorney.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    Unfortunately a refusal typically holds more severe consequences than a standard dui. contact a lawyer immediately.
    Answer Applies to: California
    Replied: 3/14/2012
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    If you refuse to take the breath test, you can receive a one year adminsitrative license suspension from the Department of Driver Services under the "implied consent" law. If you receive the paper telling you that you have an administrative suspension for refusing to take the test, you have 10 days to write the DDS in Conyers and request a hearing in front of an administrative law judge(read the back of it). Then you will also have to deal with the criminal case in State or Superior Court.
    Answer Applies to: Georgia
    Replied: 3/14/2012
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    It may make your case better to have refused the breath test, but it will make your license suspension worse.
    Answer Applies to: Georgia
    Replied: 3/14/2012
    Law Offices of James A Bates
    Law Offices of James A Bates | James A Bates
    If you are asking about the field breath test, you do not have to take that if you are 21 or over. But you do have to take the one at the station, or a blood test. If you refuse, you lose your license and they can argue to the jury that you knew you were guilty.
    Answer Applies to: California
    Replied: 3/14/2012
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    If proper procedure was followed your license will be revoked for at least one year and the DA. can argue at trial that you didn't take the test because you were drunk and knew you'd fail.
    Answer Applies to: New York
    Replied: 3/14/2012
    Kelly A. Broadbent, Esq.
    Kelly A. Broadbent, Esq. | Kelly Broadbent
    In Massachusetts, it gives you a better chance of winning, since there is no test stating what your breath results are. You should talk to an attorney about all the details of your case.
    Answer Applies to: Massachusetts
    Replied: 3/14/2012
    Law Office of Peter Vlautin
    Law Office of Peter Vlautin | Peter P. Vlautin, III
    You will loose your license for 1 year even if you are found not guilty. You would have to ask for a hearing before the DMV to argue that you did not wilfully refuse to take a test.You need to talk with an attorney asap.
    Answer Applies to: California
    Replied: 3/14/2012
    Quitmeier Law Firm, P.C.
    Quitmeier Law Firm, P.C. | William M. Quitmeier
    It depends on the nature of the incident leading to the arrest. I would recommend my clients not take the breathalyzer if there is an injury accident, but you do lose your license for one year for refusing.
    Answer Applies to: Missouri
    Replied: 3/14/2012
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    If you are in Hawaii, refusing to take the breath test can be charged as a crime. So, you may well be charged with DUI by impairment and refusal instead of DUI by impairment and DUI over .08. There are serious consequences to both scenarios. If you are serious about fighting the charges, hire an attorney that will fight using every legal, factual and scientific tool.
    Answer Applies to: Hawaii
    Replied: 3/14/2012
    Connell-Savela
    Connell-Savela | Jason Savela
    depends on if you had alcohol in your system and how much - if really drunk then taking a test can subject you to worse penalties like 10 days in jail if over .20 also - some counties will not make a decent offer if refuse in colorado, there is no requirement to take the SFSTs (field tests) and I would refuse - if you are sober, ask for and take the Portable Breath Test - if not, take breath or blood once they arrest you.
    Answer Applies to: Colorado
    Replied: 3/14/2012
    Meadows & Howell, LLC
    Meadows & Howell, LLC | Brad Howell
    Not taking the breathalyzer test does not make your case worse. In fact, most attorneys suggest that you do not take the breathalyzer test, as the results would simply be accurate data which shows your actual BAC, thus insuring a conviction. If the DUI charge is only supported by the officer's testimony, then you may have a better chance at having the charges dismissed, depending upon the specific facts of your case. However, do keep in mind that the refusal to take a breathalyzer test or field sobriety test can result in your driving privileges being suspended. Granted, if you are convicted of (or plead guilty to) a DUI, then your driving privileges would have been suspended anyways, but even if the charges are dismissed, the fact that you refused a breathalyzer tests causes the Department of Public Safety to temporarily suspend your driver's license.
    Answer Applies to: Alabama
    Replied: 3/14/2012
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    If an officer has probable cause to invoke an alcohol test and you refuse, your charge is "aggravated" to a Gross Misdemeanor, or to a more serious Gross Misdemeanor. It also has more serious ramifications on your drivers license than if you took a test and it was under .16.
    Answer Applies to: Minnesota
    Replied: 3/14/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Yes, it will make it worse as you will be charged with a violation of the implied consent law as well which will generally cause you license to be suspended by the secretary of state.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Bensmochan & Poghosyan, LLP
    Bensmochan & Poghosyan, LLP | Ruzanna Poghosyan
    Depends. You can refuse to take the breath test if you are NOT under arrest. After arrest, however, you CANNOT refuse to submit to a chemical testing of your blood or breath (or urine if you are suspected of DUI of drugs). If you do, you will automatically lose your driving privileges/license for at least 1 year and will not be eligible for restricted license. Your chemical test refusal may also affect your court/criminal case.
    Answer Applies to: California
    Replied: 3/14/2012
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    In Minnesota you would be charged with a separate crime for refusal to submit to testing. It is a gross misdemeanor level offense and is usually tried along with the DUI charge. In Minnesota, this charge carries with it all the potential penalties of a DUI conviction, including loss of driving privileges.
    Answer Applies to: Minnesota
    Replied: 3/14/2012
    Glass Defense Firm
    Glass Defense Firm | Jason M. Glass
    It will not necessarily make your case worse. First off, it prevents the state from being able to introduce a blood alcohol number against you at trial. They will have to rely on other means to be able to prove that you were impaired. However, if it is proven during your administrative hearing that you refused to take the secondary breath test, then the DMV will issue a one year suspension of your driver's license based upon that.
    Answer Applies to: West Virginia
    Replied: 3/14/2012
    Pingelton Law Firm | Dan Pingelton
    No, it won't make it worse. But you'll lose your license for a year for refusing to blow.
    Answer Applies to: Missouri
    Replied: 3/14/2012
    The Law Office of Stephanie M. Arrache
    The Law Office of Stephanie M. Arrache | Stephanie Arrache
    You are allowed to refuse any of the tests prior to arrest. However, once the officer has placed you under arrest for the DUI, you cannot refuse.
    Answer Applies to: California
    Replied: 3/14/2012
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    It really depends on the other facts of the case. I have a refusal where the client went to the jail doctor who described him in terms that show he is sober. On other cases where the defendant is falling down drunk its not a good thing at all.
    Answer Applies to: California
    Replied: 3/13/2012
    Dichter Law Office, PLLC
    Dichter Law Office, PLLC | Jonathan Dichter
    Not taking a BAC test can make some aspects of your case worse, and some better.
    Answer Applies to: Washington
    Replied: 3/13/2012
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Take a look at the Washington Department of Licensing website under the "consequences" tab.
    Answer Applies to: Washington
    Replied: 3/13/2012
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Will it make my case worse? Technically, no. But you will automatically lose your license for one year because of the refusal. And, your refusal will be commented on to show you were not thinking or behaving intelligently. A little free advice: When arrested for DUI, whether alcohol or drugs, then upon release from jail or booking the defendant is given documents that include a notice that you have only ten days to file a request with DMV for a hearing on an appeal of an automatic suspension of your license imposed by DMV. That is separate and runs consecutively with any suspension that may be imposed by the court. Contact DMV and do so, timely, then appear at your scheduled DMV appeal hearing and present any supporting evidence and testimony. If you don't know how to do these things effectively, then hire an attorney that does. Of course you can fight the criminal charges. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do? Raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial. If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney that does, who will try to get a dismissal, diversion program, charge reduction, or other decent outcome through plea bargain, or take it to trial if appropriate.
    Answer Applies to: California
    Replied: 3/13/2012
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    You have a right to refuse the breath test and many people are acquitted of DUI after they refuse.
    Answer Applies to: Georgia
    Replied: 3/13/2012
    The Rogers Law Firm
    The Rogers Law Firm | Andrea Storey Rogers
    If you refuse the test, your license will be revoked for 1 year.
    Answer Applies to: Missouri
    Replied: 3/13/2012
    Law Office of Patrick E. Donovan, PLLC
    Law Office of Patrick E. Donovan, PLLC | Patrick E. Donovan
    I always counsel people not to take a breath test (or any type of test) unless you had nothing to drink. A refusal does not help or hurt your case necessarily. I find that the typical DWI case is stronger without any test results because the State has the burden of proving its case beyond a reasonable doubt. The defendant has no duty to prove anything.
    Answer Applies to: New Hampshire
    Replied: 3/13/2012
    The Law Offices of Victor J Mazzaraco
    The Law Offices of Victor J Mazzaraco | Victor J Mazzaraco
    Refusing to take a breath test, sorry about this. Results in a 1 year suspension, longer if prior DUI's exist.
    Answer Applies to: California
    Replied: 3/13/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    The consequence for a conviction is worse, but the case itself is better. You need to hire a DUI specialist to take advantage of their "lack of evidence." Going to court by yourself and arguing for a dismissal will only make the prosecutor laugh at you. You need an attorney who knows what he is doing. And don't forget, you have only 10 days to prevent a 1 year suspension of your license.
    Answer Applies to: California
    Replied: 3/13/2012
    Brucar & Yetter, P.C.
    Brucar & Yetter, P.C. | Wayne Brucar
    It makes it easier to win at trial. The Stat has to rely on the officer's observations. It has no "scientific" evidence to go forward on.
    Answer Applies to: Illinois
    Replied: 3/13/2012
    The Law Offices of Harold L. Wallin | Harold L. Wallin
    Assuming that you would have blown over 0.08, then no, you did not hurt your case. In fact, you might be able to win the case at trial.
    Answer Applies to: Illinois
    Replied: 3/13/2012
    The McDonnell Law Firm, PLLC
    The McDonnell Law Firm, PLLC | Patrick J. McDonnell
    Yes, probably.
    Answer Applies to: New York
    Replied: 6/2/2013
    Harris Law Firm
    Harris Law Firm | Jennifer C. Robins
    Officers are trained to look for numerous signs of impairment in a DUI case. A breath test result is not necessary. You can still be charged, tried and convicted, even without a breath test result. Refusing the breath test can be used against you in court if you go to trial on the DUI. The prosecutor will say you didn't take the test because you knew you were driving under the influence. It will be up to your attorney to counter that argument. Refusing the breath test can also lead to a fine from $500 - $1,000.
    Answer Applies to: Oregon
    Replied: 3/13/2012
    The Short Law Group, P.C.
    The Short Law Group, P.C. | Shawn Kollie
    Although refusing a breath test will be another citation, and a 1 year license suspension in Oregon, this by no means will make your DUI charge 'worse'. Talk with a DUI Lawyer in your area as to how a refusal may help bolster your case, or provide some beneficial aspects to your case if it goes to trial.
    Answer Applies to: Oregon
    Replied: 3/13/2012
    Ellman and Ellman PC
    Ellman and Ellman PC | Kevin Ellmann
    It will mean a 1 year revocation of your driving privilege unless you win the DMV hearing! But it ultimately might help you in the criminal case. Consult with a qualified DUI defense attorney. Good luck!
    Answer Applies to: Colorado
    Replied: 3/13/2012
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