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.