Can You Refuse a Breathalyzer? 

by Rowan Guthrie
Driver due to being subject to test for alcohol content with use of breathalyzer

A police officer pulling you over because they suspect you’re driving under the influence or driving while intoxicated may conduct a breathalyzer test. A breathalyzer is a device that measures the amount of alcohol in your breath and estimates your blood alcohol concentration. 

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In this situation, it's natural to feel anxious and equally understandable to wonder if you can refuse a breathalyzer. After all, there may be consequences for not following the officer’s instructions.

What Is a Breathalyzer Test?

A breathalyzer test is an electronic device that measures the amount of alcohol in the breath you exhale. Law enforcement officers use it to determine if you’re driving under the influence of alcohol or driving while intoxicated.

The legal limit for BAC in almost all states is 0.08%, except Utah, where it's 0.05%. Anyone whose BAC level is 0.08% or above is legally intoxicated. Consequently, their muscle coordination may be reduced, and they may find it harder to detect danger. Their judgment and reasoning may also be impaired.

There's a zero-tolerance limit nationwide for drivers younger than 21. 

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What Is a Blood Alcohol Test?

A blood alcohol test checks the level of alcohol in the blood. Several tests are available, including withdrawing some of the person’s blood with a syringe and taking a urine sample. While a breath alcohol test is commonly conducted on the spot when the person is with their vehicle, a blood alcohol test is usually carried out at the police station. An officer may use this option to confirm the breath test results or because the driver has refused a roadside test.

Can You Refuse a Breathalyzer Test During a Traffic Stop?

You have the right to refuse to take a breathalyzer test in all states, but there may be consequences. Every state has what’s commonly called an Implied Consent Law. This means everyone driving on a public road gives their consent to have their alcohol content tested by a law enforcement officer. Therefore, you should think carefully about refusing. If possible, consult with a lawyer before or immediately after taking a breathalyzer test to protect your legal interests. 

Can You Refuse a Blood Alcohol Test After You’re Arrested?

Although the Fifth Amendment protects you from testifying against yourself in a criminal case, law enforcement officers can collect evidence via a blood alcohol test. You can refuse after you’ve been arrested, but in response, most states will immediately suspend or revoke your license.

Some drivers who suspect they may be over the limit refuse in the hope their BAC levels will drop below the legal limit before the officer can get a warrant to compel them to take the test. However, as of 2023, 30 states have enacted “no refusal” policies that allow officers to contact an on-call judge. The judge can send an electronic warrant to the officer's phone or computer, enabling them to conduct the test immediately.

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What Will Happen If You Refuse to Take a Breathalyzer Test?

You're likely to be arrested if you refuse to take a breathalyzer test. Depending on your state, you risk jail time or a fine and a criminal record. When you get your license back, you might find your insurance goes up. You should check your state’s website to confirm its policies regarding the refusal to take the test.

How Refusing a Breathalyzer Test Can Affect Your Case

In some states, refusing a test is a crime, while in others, it’s a civil case. Even if you do refuse, a prosecutor may still decide to charge you with DUI based on other factors, such as:

  • Evidence collected at the scene
  • The arresting officer’s observations
  • The testimony of witnesses
  • The results of a field sobriety test

In some states, refusal can be used against you in court. The court might see your refusal to cooperate as a sign of your lack of goodwill and, consequently, impose harsher penalties.

Finally, many lawyers advise clients not to take breathalyzer tests (although many do). The reasons why some advise refusal include:

  • If the test confirms you’re over the limit, the officer has probable cause to arrest you.
  • Refusing the test means the law can only pursue you for the opinion of DUI and not per se DUI.
  • It’s easier for the lawyer to discredit an officer’s testimony over technology.
  • A portable breathalyzer is inadmissible in court because it isn’t as accurate as a blood test.

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