Is it bad advice to refuse a breathalyzer?

January 21, 2021 by G.W. Schulz

To blow or not to blow, that is the question -- at least for DUI lawyers. If an officer without a warrant invites you to consent to a field sobriety test, breathalyzer, or draw of your blood to verify that you are not driving under the influence, should you do it?

Some DUI lawyers advertise their services around always refusing breathalyzers or requiring police to obtain a warrant for your blood. They argue your consent only risks strengthening the officer’s evidence against you.

Unfortunately, there is no one right answer. The circumstances of a given interaction with police and your knowledge of the law should determine what decisions you make.

Keep these facts in mind if you’re suspected (in Oklahoma) of driving under the influence.

Different Tests Have Different Standards

An Officer has several ways to test you to see if you’re impaired, all with different levels of scientific certainty.

A test of your blood is the most effective way for authorities to confirm you are legally too impaired to drive. A blood test is also the most difficult for you to overcome in court and could inadvertently reveal legal medications like state-approved medical marijuana. However, In order to forcibly draw your blood, the Fourth Amendment requires that police first obtain a warrant from a judge. That’s not always practical from a roadside late at night, so police turn instead to other available means. These means don’t require a warrant but leave you free to refuse them.

Another avenue available to Police is inviting you to participate in a field sobriety test by walking heel-to-toe in a straight line, follow an officer’s pen with your eyes, or stand on one leg. This is the least likely to be accurate and is usually combined with a post-arrest blood test after a warrant has been secured.

Another is inviting you to take a breathalyzer test. An officer will likely frame these invitations to you as required to demonstrate your ability to continue on your way. In both cases, you are generally within your legal right to refuse testing if the police have not obtained a warrant. Yet doing so can lead to unintended consequences. Refusing a breathalyzer can lead to the loss of your driving privileges for months or years and becomes indirect evidence of your guilt in court.

Part of the reason why the question of ‘should I blow?” is so complicated is a little-known legal concept called “implied consent.” Every state – including Oklahoma – treats driving as a privilege, rather than a right. That means you “consent” to breathalyzer testing the moment Oklahoma issues you a driver’s license.

Therefore, if you refuse a breathalyzer, the State of Oklahoma can automatically begin taking steps to revoke your driving privileges as a civil action against you. If you are under 21, your license can be revoked either for refusal or for a blood alcohol concentration of .02 or greater.

This automatic license revocation does not apply to field sobriety testing, for which refusal does not worsen either your criminal or civil cases. Refusing a breathalyzer, on the other hand, triggers a countdown of 30 days, during which time you must challenge the revocation or lose your driving privileges for anywhere from 6 months to 3 years.

If you consent to a breathalyzer hoping to keep your driving privileges and blow above the legal blood alcohol concentration of .08 – about two to three pints of beer – Oklahoma begins taking the same steps to revoke your driver’s license. That’s in addition to any criminal charges you face for driving impaired.

You Can Get Arrested Either Way

Police do not need a warrant to arrest you for a DUI, even if you refuse sobriety testing. An officer can make an arrest based solely on his or her own training and experience. An impaired driving arrest can begin as a simple traffic stop, in which you failed to use a turn signal, but your car (or you) smelled of alcohol. Or police may say they witnessed signs of an impaired motorist, such as swerving or reckless driving. What the State cannot do is enhance any criminal charges against you for refusing a field sobriety test, breathalyzer, or blood draw if no warrant was obtained first.

While you still have options during a DUI stop, it’s important to consider the full spectrum of possible outcomes. And know that if you are arrested for impaired driving, your life isn’t over. You still have rights, and your charges could be reduced or dismissed if it’s determined that they were violated.

Have You Or A Loved One Been Arrested For DUI?

We know bad things happen to good people. You need to remember that a DUI arrest does not mean an automatic conviction, license revocation, or punishment. But, if you do find yourself accused of crime, you’ll want the best advocacy available to ensure your rights are protected. If you hire us, we will work with you to analyze every detail of your DUI case to minimize the impact it will have on you and your life. Contact us for a free consultation.

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