The Breathalyzer test refusal – It’s your right!

When you are suspected of drunk driving and the officer wants to give you a breathalyzer test, that officer will likely tell you that you have a right to refuse the test. Sounds great, doesn’t it? If you refuse, because you have a ‘right’ to, then there’s no evidence, right?

Well, a breathalyzer test is only one of several pieces of evidence against you. If you reek of alcohol, have glassy eyes and difficulty standing, those are pieces of evidence which will not be overlooked just because there is no BAC number to go along with them. Also, the breathalyzer test comes last. When you are asked to blow into a breathalyzer, it is usually because you have already failed other tests and now they just want to get the BAC number as a final piece of evidence. So refusing the breathalyzer test is not a sure way to beat a drunken driving charge.

Still, you have a right to refuse. People cite their 5th amendment rights and point out the invasiveness of a breathalyzer test. After all, they are taking a sample of your breath and using it as evidence against you. A common example of 5th amendment rights is where a criminal ‘pleads the 5th’ in response to questions where the answers may be self-incriminating.

In situations like pleading the 5th in court, no penalties can be brought against you for exercising your right. That’s cool in a court room, but it doesn’t work that way on the side of the road when an officer is trying to determine if you are too drunk to drive.

In fact, if you refuse a breathalyzer test, you wind up with a charge against you for refusing the breathalyzer test! I’ve heard people say that the reason they would refuse to blow is to avoid losing their license as a result of their drunken driving charge. Well, guess what the typical punishment for breathalyzer refusal is … That’s right! You typically lose your license for anywhere from six months to a year.

Breathalyzer refusal *might* also count the same as a drunk driving charge on your record. In New Jersey, the Supreme Court recently ruled that the two crimes were not interchangeable with respect to repeat offenses. Let’s say in separate incidents, you’d had a DWI and a refusal. Your next DWI would have been treated like your 3rd. Now it will be treated like your 2nd. This will likely be challenged and may not be the case where you are.

When you refuse, obviously, you are not cooperating with the officer. In fact, you’ll notice an immediate change in his demeanor. Depending on the law where you are, you might even be ‘interfering with an investigation’. It never looks good in court the next day to be uncooperative during the arrest.

And there are some states that won’t take ‘no’ for an answer! “No Refusal” is the NHTSA strategy to obtain a forced blood draw from those who refuse the breathalyzer test. Local judges agree to be on call to approve the search warrant necessary to take a sample of your blood. Out of over 30 states where the laws allow for a No Refusal approach, 9 already use it. You may have heard of this over the holidays and thought it was a seasonal thing. Depending on where you are, it may be a year-round tactic.

If you Google around, you’ll find that most defense attorneys will tell you refusal is a bad idea that just makes things worse. Some suggest there may be rare occasions when it makes sense to refuse a breathalyzer test. But they make it sound like you would need to be able to call the attorney after getting pulled over and before being asked to blow in order to determine whether you should refuse or not. Obviously, that isn’t going to happen.

No matter how you look at it, refusing a breathalyzer test is the wrong advice. It complicates matters and adds penalties against you. The only Real way to beat a breathalyzer test is to wait sufficiently after drinking before driving. THAT is our advice.

Breathe test refusals

DUI and refusing a breath test

In Section 316.1932 of the Florida State Statutes it states that:

“Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including…test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath…”

This part of our state law is called “implied consent”.  By accepting a driver’s license you also are agreeing to the police’s right to test your breath, blood or urine for the presence of alcohol, drugs or controlled substances while operating or in physical control of a vehicle. If you refuse to take a test then the law states that your license will be suspended for the period of one year for a first refusal and a period of eighteen months for second and subsequent refusals.  Additionally, if there has been a prior refusal then this current refusal will be charged as a misdemeanor. The law also states that the refusal to submit to a test when requested to do so by law enforcement officers can be used as admissible evidence in any DUI proceedings.

The suspension of your license is actually carried out by the Florida DMV. Often one is able to schedule a DMV hearing to get a license reinstated if done within 10 days of the DUI arrest. Refusing a breath test can actually work very heavily against you in these hearings. The DMV hearing representative is likely to deny reinstatement in the case of a test refusal.  In these situations it is very important to have skilled legal representation from a West Palm Beach DUI attorney as you will need a solid presentation in this situation.  With skillful address to your case it may be possible to avoid the loss of your license if procedural errors in the arrest or failure to have probable cause can be proven.

How accurate are breath tests and breathalyzers?

There is tremendous controversy over the accuracy of breathalyzers and their use in the field. The issues are with how often and recently the devices have been tested and calibrated for accuracy.  There are also significant issues regarding the procedure in administrating the test. There have been a number of studies done to determine the accuracy of these devices in use and research has demonstrated a high level of deviation when measured against actual blood alcohol content.

There is a strong body of evidence to indicate that the results can show a variance as of 15% or more from actual Blood Alcohol Concentration (BAC). Other studies have indicated that as many as one out of four tested will read higher than their true BAC. At Dire Nzo & Wick we have years of experience and familiarity in challenging the legality and validity of these tests.

Deleting a misdemeanor charge of your history

Bad behavior in the past should not spoil forever the future of a person, although very often it happens. The criminal justice system of the United States punishes criminal behavior and requires people to disclose information about their criminal past to potential employers, universities and licensing agencies. If you have a misdemeanor on your record, you may be able to close or delete the record. The specific process varies slightly in each state, but the general process is relatively uniform.


  1. Visit your local police department and asked whether the cancellation of registrations is available. Not all states allow you to remove a misdemeanor charge of your history. New York, for example, has a cancellation process for those convicted of criminal behavior.
  2. Ask the manager of your department of state police on eligibility for cancellation. If your state allows the records are closed, you must determine if you are eligible. For example, in Michigan, only you must have an offense, and you are not eligible for cancellation until they have been five years of your sentence.
  3. Get an application or a request to withdraw / cancel / delete / remove the misdemeanor. Once you’ve determined whether you are eligible for cancellation, you must fill out the form asking the court to withdraw / remove the registration of your offense. The application will vary in each state; Visit your nearest justice department to find out where to get the appropriate form for your state.
  4. Fill out the form truthfully. Many forms request you to explain the circumstances surrounding your minor offense and request that you indicate if you have been convicted of any other offense.
  5. Deliver the completed form to the court where you passed sentence. Follow any specific procedure for the state. The court will explain any procedure you should follow (and provide a copy of your petition to the state prosecutor’s office), Meets these procedures and deadlines and other instructions issued by the court.

Tips & Warnings

  • Once the form has been delivered will depend on the short decide whether to grant your request. Delivery to court all documents will help you make that decision (as evidence of volunteer work, signed statements testifies about your good behavior, etc.).
  • The law is constantly changing and is full of difficulties for those seeking handle their own legal matters. This article does not attempt to provide legal advice. It is strongly recommended that you seek the assistance of a lawyer in your area.


Jurisprudence over the offense of driving under the influence of drugs SAP-MU 39/2015 crime of driving under the influence of drugs and witness statements IB 117/14 SAP- driving offense under the influence of drugs and analytical SAP-IB 117/14 Judgment Hearing about the symptoms of poisoning by drugs and driving: “The Board indeed considers that the case of the prosecution appears feasible primarily because it would explain the accident, but also of the defense and at least similar or identical probability. We say this because if the defendant had ingested cocaine and other substances such as amphetamines and methamphetamines and cannabis these have stimulating effects and non-depressants body and yet the state of the accused It was not characteristic of these substances, but the contrary. I was dejected, decentralized and instability is also important to note that leaf symptoms does not correspond to the person of the accused, if not with the other individual identified by another name and DNI with different data and possibly another driver who was stopped that morning or the night before (the Judging attributed the defect to a mere mistake in the name but not the symptoms); and the most important thing to note is that just after one hour and fifteen minutes from the accident the defendant to medical examination revealed no signs apparently normal symptoms of being poisoned. In any case, the accused had drugs typically produce consumed in the subject the consumer excitement, waking, hyperactivity and euphoric effects. However the attitude of the driver was the opposite.

The driver of the other vehicle was not strict when it comes to describing the state of the accused, he simply said that he felt something strange, but nothing prevents that was due to his nervousness, knowing he had consumed drugs or have suffered very fact an accident or front-lateral collision that finished out of bed after a weekend in which he had consumed stale and variety of substances. With all that to the extent feasible while the accident was because the defendant was under the influence of drugs, as it was due to a different reason, such as a distraction or drowsiness and the defendant although used drugs that previous intake could take place the night of Saturday to Sunday and not Sunday night and that would explain the results of the analytical results have yielded positive, but that was not affected by that consumer, since the elimination of the drug in the body lasts for several days, although their effects disappear after a certain time and even after sleep and rest for several hours, as they had declared the defendant and his then partner sentimental, why the doctor who explored the accused when shooting analytical urine for no perceived symptoms consistent with a consumption immediately the accident drug to the duality of probabilities and both being equally possible and with the same legal vitality, there is no other conclusion than the issuance of an acquittal under the principle in dubious pro reo. ”


Can I refuse a Breathalyzer Test ?

Drunk-driving checkpoints, arrests, and convictions have become so common that everyone seems to have their own story, or, if not, a friend-of-a-friend’s story. And for every story there are just as many arm-chair attorneys who know exactly what to do when faced with Breathalyzer test. But which one is right? Here’s a quick look at the real consequences of refusing a Breathalyzer.

What happens if I refuse a Breathalyzer Test?

If you refuse a Breathalyzer test, you will most likely face serious consequences. For instance, if an officer stops you and believes you are intoxicated, and you refuse to submit to a test to determine your blood-alcohol concentration (BAC), you may risk having your license suspended or even face jail time.

While you may not be under arrest at this point, refusing a Breathalyzer may not be such a great idea as prosecutors may still base a potential DUI/DWI charge on other evidence collected at the scene, including officer observations, witness testimony, or the results of a field sobriety test. In certain jurisdictions, your refusal may be used against you in any possible trial. And some state laws distinguish between refusing a mobile Breathalyzer (which can carry a small penalty) and refusing a post-arrest blood, urine, or breath test at a police station or hospital (which can result in more severe penalties).

Implied consent laws

Since driving is considered a privilege and not a right, states can suspend or revoke your driver’s license, levy fines, or even put you in jail for not submitting to a BAC test when suspected of a DUI. Under “implied consent laws,” drivers have implicitly consented to a BAC test in exchange for driving privileges. Therefore, you essentially surrender your driving privileges if you refuse a Breathalyzer.

States will generally penalize drivers for refusing to take the test by suspending their license for up to 12 months, depending on the state. Those with past DUI convictions can face even longer suspensions or jail time. However, some drivers may decide that the penalty for refusing a BAC test is less severe than a third or fourth DUI conviction.

On average, 20 percent of those suspected of driving under the influence refuse to take a BAC test, according to the National Highway Traffic Safety Administration (NHTSA). But major differences in state-by-state refusal rates (for example, 2.4 percent in Delaware and 81 percent in New Hampshire) suggest wide variances in how implied consent laws are enforced. It is therefore important to know how your state enforces DUI penalties.

“No-Refusal” enforcement

In response to drivers who refuse a Breathalyzer test to avoid incrimination, some states have adopted “no-refusal” DUI enforcement initiatives which can force suspects to submit to testing under the authority of a warrant. The ability of police officers to procure electronic warrants on their mobile devices from a judge has helped address the problem of a suspect sobering up before a paper warrant can be physically obtained. Further, refusing a warrant-ordered BAC test can result in serious contempt charges, and could just result in police drawing a blood test by force.

More than half of all states have the legal authority to enact no-refusal DUI enforcement initiatives, but not all states actively use them. Also, some states may permit drivers to contact an attorney prior to deciding what chemical test to take after a traffic stop. Check with the laws in your state and local jurisdiction for more details.

More resources

The rules and regulations regarding consent to field sobriety tests can be complex, and it is important to be aware of your rights and responsibilities. If you have been arrested or charged with driving under the influence, or if you want to know what the rules are before that happens, you can consult with an experienced DUI attorney in your jurisdiction. You can also find more introductory information in Find Law’s DUI section.


Boulder DUI Attorney

Consequences of Refusing a Breath Test

Law enforcement officers employ a number of tests to determine whether you are under the influence of alcohol. Of all the tests a law enforcement officer can perform to ascertain the level alcohol in your blood, and the breath test is the most commonly used testing procedure. As breathalyzer tests can tell an officer your blood alcohol level with a questionable amount of accuracy, many individuals opt to refuse a breath test when pulled over under the suspicion of operating a vehicle while intoxicated.

Tests such as the breathalyzer are voluntary and an individual has every right to refuse to participate in these tests. In some instances, refusing a breath test can be a further indication to law enforcement, the prosecution, and to the judge that you were indeed intoxicated beyond the legal blood alcohol levels. You will automatically face severe consequences if you choose to refuse the test. If you find yourself in a situation where you have refused to participate in a breath test and stand to face the consequences of your refusal, you must contact a Boulder DUI attorney immediately.

Breathe Test Refusal Lawyer in Boulder

An attorney with a thorough knowledge of all laws and circumstances surrounding DUI cases can review your situation and advise you on how to proceed. Refusing to take a breath test is not an admission of guilt, but it can lead to a suspension of your license for one year or longer. At the Lancaster Law Office, we believe that your right to refuse a breath test should be protected. It is vital that you have skilled legal representation to address any such case, as there may be opportunities to avoid the consequences when our legal team takes immediate action on your behalf.

Traffic Violations (DUI DWI) 

A first offense DUI is usually a misdemeanor punishable by imprisonment or a fine. Illinois DUI statute criminalizes all leading, almost any type of vehicle while under the influence of alcohol, drugs or any intoxicating compound. Illinois DUI statute also criminalizes “physical control” of a vehicle under the influence. Therefore, the law does not require that a person actually driving the vehicle or have the engine running. A DUI conviction is a felony that is almost certain to affect the freedom of a person, privileges, employment or car insurance driving unfavorably.

A person accused of a DUI may receive more than a traffic infraction DUI. This is due to the statute currently it classifies many different types of DU I. In most DUI traffic stops, it will apply more than one legal section. For example, a person may smell like alcohol and failed field sobriety tests and that person can take the breathalyzer test and blow higher than 0.08. Therefore, the police will issue a citation for DUI for driving with an alcohol concentration greater than 0.08 breath and police issued a citation for DUI for driving under the influence of alcohol.

DUI penalties vary depending on a number of factors. Penalties of typical criminals  who infringe first law   generally includes a period of court supervision, treatment of alcohol and substance abuse counseling, assistance to a panel of victim impact and legal fines and court costs. A mandatory assessment agency assessment sanctioned by the Circuit Court of the place generally determines the amount of treatment and counseling. However, the trial court always has the power to increase penalties within legal limits. It is important to know, however, is that a DUI conviction will result in the Secretary of State to revoke the offender’s driver’s license. Revocation, unlike a suspension, not a termination date established. Illinois law also created a number of aggravating factors that trigger mandatory sanctions such as mandatory jail, community service, fines, installation of ignition interlock devices and revocations. These factors include, but are not limited to, the age of the offender, the age of the passenger, the concentration of alcohol in the breath of a person if the offender had insurance or if the offender had a valid driver’s license.

A person accused of a DUI faces not only the criminal case, but in general will face administrative suspension of driving license. This administrative action can lead to unusual results in a person defeat the DUI charge but still gets suspended license. This suspension is called legal summary suspension. Suspension of the license of this driver is independent of the criminal case, and is the result of an administrative action by the office of the Secretary of State of Illinois. People who agree to perform the breath test and will not receive a suspension, a person who refuses to take a breathalyzer test receive a longer suspension. Moreover, the Secretary of State will not lift the suspension until the time and the person paying a reinstatement fee. Under certain limited circumstances, a lawyer may be able to file a petition to revoke the statutory summary suspension. A lawyer must file a petition to rescind the statutory summary suspension within a specific time period or the offender will lose the right to challenge the suspension. If the court grants the request, the Secretary of State does not suspend the offender’s driver’s license or the suspension lifted. If the court rejects the request to annul the legal suspension, an attorney may still be able to get limited privileges to the client drive, sometimes known as an igniter or BAIID.

A DUI is a very serious crime. The many types of DUI charges and circumstances of each case are as diverse as the sanctions regime applicable, revocations and suspensions. Therefore, each case may present an opportunity for our experienced defense lawyers to attack the base of the traffic stop, or to attack the results of a breathalyzer test or suppress the results of the field sobriety exercises.