Refusing a Breathalyzer or Chemical Test in a DUI Stop
Refusing Breath and Blood Alchohol Tests
In addition to undergoing a field sobriety test, a driver who is stopped for a suspected DUI may also be asked to agree to a chemical test in order for law enforcement officers to determine his or her blood alcohol concentration. If a driver refuses to perform the test, penalties may be imposed.
What Are Chemical Tests?
Chemical tests, also known as sobriety tests, are tests conducted in order to ascertain the amount of alcohol currently in an individual’s system. By determining a driver’s blood alcohol concentration, law enforcement can figure out if a driver is illegally driving while intoxicated. Three common forms of chemical tests are the breathalyzer, a blood test, and a urine analysis.
Blood Alcohol Tests
Blood alcohol content levels (BACs) are typically measured in three ways:
1A breath test
2A blood test
3A urine test
Breathalyzers are the easiest and most commonplace means of determining a driver’s blood alcohol concentration because they can be done using a portable breathalyzer that law enforcement may carry with them. The breathalyzer measures the alcohol content in an individual’s breath and then converts that into a blood alcohol percentage. In most states, an individual with a percentage of .08 or higher is considered to be driving while intoxicated.
Blood and urine sample analyses require more time and effort on the part of the driver and law enforcement, but they yield more accurate results. Unlike a breathalyzer, they determine blood alcohol concentration directly and do not require any additional formulas or conversion.
Although a driver may not be compelled to undertake a chemical test if he or she is stopped on suspicion of drunk driving, refusal to do so can subject the driver to penalties. This is because most states have implied consent laws. Under implied consent laws, when an individual applies for a driver’s license, he or she gives consent to be stopped on public roadways on suspicion of drunk driving and consent for any necessary chemical tests to determine if he or she is impaired.
Since a driver who refuses to complete a breathalyzer or a blood alcohol test violates the implied consent arrangement, almost every state imposes a mandatory driver’s license suspension on the driver. This may vary in length from six months to a year. Additionally, in some states, such as New York, fines may also be imposed. If a driver who refuses a test is later found guilty of a DUI, the refusal can be considered by the court in determining whether to impose heightened punishment on the driver for the DUI.
Does a Police Officer Need a Warrant to Test?
Usually, no. A police officer does not need a warrant to administer a breathalyzer test so long as they have a reasonable suspicion that the individual violated the law. However, blood tests generally require a warrant unless the individual is unconscious and cannot take a breath test.
In many instances, a driver may refuse a breathalyzer or a blood alcohol test in order to require law enforcement to obtain a warrant to conduct a test. In theory, this gives the driver time to “sober up,” and it may prevent the driver from being arrested for a DUI. Since punishment for a failure to perform a chemical test is lighter than the possible penalty for a DUI charge, drivers may find that this trade-off is worth it.
In order to discourage drivers from taking this approach, some states have enacted “no-refusal policies.” These policies allow law enforcement to immediately contact an on-call judge and obtain a warrant to conduct a blood alcohol test. The warrant is then sent to the law enforcement officer’s phone or computer, allowing the test to be conducted quickly. This approach is termed “no-refusal” because once a law enforcement officer has obtained an immediate warrant, the driver cannot refuse to submit to the test without facing the possibility of serious punishment, such as contempt or obstruction of justice charges. The hope is that these policies will discourage drivers from avoiding breathalyzer or blood alcohol tests by eliminating the likelihood that the driver can sober up in the interim.