Is it better to refuse a breathalyzer test?

What happens after you’ve refused to give a chemical breath test or a blood test after being arrested for a DUI?

That’s a common question I get from people who have been arrested for a DUI.

Let’s talk about some of the consequences.

When you get your driver’s license, you give what’s called implied consent that you agree to submit to a chemical test after you’ve been lawfully arrested for a DUI. Now sometimes people get confused because there’s a difference between what’s called the “past device,” which is the portable alcohol screening device, and the “chemical breath” test at the station.

So allow me to tell you a little bit about the difference between the two.

The past device

The past device, more common known as the portable Breathalyzer device, is what is usually given to you at the scene of the incident. That is considered a field sobriety test, and that test is given to you before the officer has probable cause to arrest you.

Portable alcohol screening device

Typically the officers rely upon this portable alcohol screening device as another field sobriety test. Basically, it’s another tool that they use to determine if they have probable cause to arrest you for a DUI.

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So technically there’s no penalty if you refuse to submit to the portable alcohol screening device, meaning the past device at the scene of the incident. Because again, this is just another field sobriety test that the officer uses to determine if you can be lawfully arrested and it’s usually given to you before an actual arrest is made.

But you could be facing a penalty if you refuse the past device if you’re under 21 years old, or if you’re on probation for a previous DUI. If you’re in a situation where you have refused to submit to a chemical test after being arrested for a DUI, the reason why the situation for you might be a little bit more serious is because the punishment is more serious when it comes to a refusal versus a standard DUI, where there is an actual result from a chemical test. And what do I mean by that?

If this is your first DUI offense and if you refuse to give a chemical breath or blood test then what you’re looking at is an additional one year suspension on your license where there’s no restriction allowed, meaning that you won’t even be allowed to drive to and from work within the scope of your employment or to and from school.

Another reason why it’s really important is because if you actually get convicted of a DUI and you are deemed to have refused the chemical test, then you could be looking at a mandatory minimum of up to 48 hours in jail, if this is your first offense. And also you could be looking at additional penalty assessments.

Some of the other penalty assessments include a longer DUI program. So for instance if this is your first offense, you’re looking at a three month DUI program. But if you get convicted of a DUI and if you’ve refused to give the chemical test then you’re looking at up to a nine month program. And that’s just for your first offense.

If you have any priors It increases the punishment. So instead of the 48 hours of jail time, you could be looking at more time. And also, instead of the nine month program, if you have multiple DUI’s in the past within the last 10 years, you could be looking at an 18 month program.

So as you can see there are significant enhancements when it comes to a refusal and a DUI.

Another thing to consider is that you’re thinking about your case. And let’s say that you’re thinking about it and you say “well I changed my mind. At first I said no, but then I told the officer ‘okay I changed my mind. I’d be willing to do that.'” Well, think again because under the law, technically all it takes is just one answer to say “no I’m not taking it.” Even if you change your mind, the officer can still demand a refusal.

Now let’s change the facts a little bit. Let’s say that the officer admonishes you that you could be facing these consequences. And let’s say that you just don’t answer. You’re just silent. That could be deemed a refusal. Or let’s say that after the officer admonishes you, you say “well I’m not going to do anything until I talk to a lawyer.” That can be deemed a refusal.

Now some of the things that we look at to see if there was an actual refusal in your case is to determine if the officer properly gave you an admonishment.

Now what does that mean?

The officer has to give you a proper admonishment or advisable as to what your consequences will be if you refuse the chemical test, and what the officer has to instruct you on is that if you refuse and if you get convicted of a DUI, that your license will be suspended, that you will be subjected to fines, penalties, and assessments, and that you will face mandatory jail time.

So, some of the things that my firm looks at in determining whether there’s a righteous refusal is to see if the admonishment was properly given, and if some of that information was not advised to you. If this admonishment was not properly given, then that’s another way to try to attack whether this was even considered a refusal under the law.

Now there are certain circumstances in which an officer can still require you to take a blood test even if you refused.

And those circumstances include:

  • If you’ve been arrested for a felony driving under the influence, meaning you’re you’re driving under the influence injuring someone or causing death to someone, or if you have multiple priors meaning if it’s at least your fourth DUI within 10 years.
  • Another circumstances is when an officer gets a warrant from a judge to require you to submit to a forced blood draw
  • And the third circumstances is if the officer believes that you’re under the influence of drugs, and if the officer has probable cause to make that arrest.

So if any of these circumstances sound familiar to you or if you’re in a situation where you’re facing a DUI involving a refusal of a chemical test, please make sure to give us a call and schedule a consultation because we’d be more than happy to discuss your case with you and to provide you with your options.