Can I refuse a Breathalyzer?

What IS a Breathalyzer?

If you are pulled over on suspicion of DUI (Driving Under the Influence), you may be asked to submit to a breathalyzer test. A breathalyzer is a device that estimates a person’s blood alcohol content (BAC) by measuring the amount of alcohol in one's breath. Although these devices are generally accurate, there are a number of calibration, operator and outside influences that can and do produce inaccurate results. This can lead to failing a breathalyzer.

Field Sobriety Tests

There is a lot of confusion and misinformation as to whether or not you should submit to a breathalyzer test. While you are allowed to refuse to take a breathalyzer test, there are many negative consequences that may ensue. Before you are asked to submit to a breathalyzer test, you will usually be asked to perform several field sobriety tests. These may include: 1) a horizontal gaze nystagmus, in which you are asked to follow an object from side to side with your eyes; 2) heel-to-toe walk, in which you are asked to walk a straight line leaving no more than a six inch gap between you toe and heel and 3) standing on one leg, where you are asked to stand on one leg for a period of time, usually around 30 seconds. You may want to speak with an experienced DUI defense attorney before taking any tests unless you are 100% sure that your BAC will be below the legal limit of 0.08% in all states. If you are under the age of 21, the legal BAC is only 0.02%! You can and probably should refuse to submit to field sobriety tests.

GO DIRECTLY TO JAIL!

In most states, refusing to submit to a breathalyzer test can lead to serious criminal consequences. If a jury trial is held for a DUI case, most states allow that information to be introduced to the jury. The jury is instructed to draw a permissible inference of “consciousness of guilt”. These laws differ from state to state; in Massachusetts and Delaware, for example, no mention of this refusal may be introduced into a courtroom hearing. A DUI suspect’s refusal to submit to a breathalyzer test or other field sobriety tests may result in the automatic suspension of one’s driver’s license even if not convicted of drunk driving. Refusing to submit to these tests may also increase the penalties for any convictions. In some states, it is actually considered a crime to refuse to take a breathalyzer test when you have been stopped on suspicion of drunk driving. This may also mean that you go to jail, period!

Implied Consent for DUI Testing

Many states also operate under an “implied consent”, which means that anyone who is issued a driver’s license implicitly agrees to allow testing of one’s breath, urine and blood by law enforcement should he be stopped on suspicion of DUI/DWI (Driving While Impaired).

Breathalyzer Error

Although breathalyzer test results are fairly accurate, they are by no means 100% accurate. In fact, it is estimated that there may be a 20 to 30 percent margin of error with breathalyzers! Breathalyzers can yield false positives from several medical conditions including diabetes, smoking and alcoholism. Inhaling chemicals such as paint fumes may also lead to false positive breathalyzer results. And, since breathalyzer results are based on the height and weight of the “average person”, if your measurements differ significantly from the norm, your breathalyzer-measured BAC may very well be very incorrect!

If you are facing a DUI charge, please take a moment fill out our secure free legal evaluation form and one of our experienced DUI defense attorneys will contact you immediately. Or call us toll free at 800-798-8384. Your information will remain confidential.