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DUI Laws: What is the Penalty for Refusing a Breathalyzer Test?

We’ve all been there. You’re driving home after dinner and drinks with some coworkers. Nothing out of the ordinary.

Everyone was drinking so much you feel good about stopping after just 2 beers.

But the cop pulling you over doesn’t see it this way.

They see red eyes and dilated pupils.

It only takes a few moments before he’s asking you to exit your vehicle for a sobriety test.

But here’s where most of us don’t realize we have a choice. We have rights.

This article explains the penalty for refusing breathalyzer test when you’re suspected to have been driving under the influence.

Know Your Rights

Do you have the right to refuse a breathalyzer? The short and simple answer is yes.

But before you turn down that breathalyzer test you better be ready to handle the consequences.

Refusing breathalyzer tests comes with its own pros and cons. To start, there’s the issue around the implied consent law.

What Is Implied Consent?

Glad you asked. Remember your parents’ lectures when you 1st got your license?

“Driving is a privilege,” your mother would say every time you went out, “not a right.”

But do you have to consent to a breathalyzer? Every time you take your car out on public roads, you’re consenting to take a breathalyzer test.

Refusing to do so has consequences. But there’s a big difference between the penalty for refusing breathalyzer test compared to being charged with a DUI.

Administrative Vs. Criminal Penalties

When you refuse to take a breathalyzer test, the following penalty is administrative, not criminal.

What does this mean?

It means this is an issue with the DMV, not a criminal offense. So if you turn down a breathalyzer test you will lose your license for 180 days, no matter what.

There’s no judge, trial, or jury to give you the benefit of the doubt.

And if you’re still charged with a DUI, these administrative penalties with the DMV don’t disappear or go towards time served.

Nope, on top of dealing with a DUI, you have to deal with these administrative issues separately.

What Happens the 2nd Time?

So you’ve turned down a breathalyzer test in the past, what if you press your luck by doing it again?

Remember, when you refuse a breathalyzer you are automatically subject to the administrative punishment of the DMV.

There is no arguing about it. Turn down a breathalyzer twice within 10 years and you’re looking at a 2-year suspension of your license.

“How Will I Get to Work?”

If your license is suspended, you might be wondering how you’re supposed to get to work.

This is where an occupational license comes in handy. An occupational license gives you permission to drive to and from work as well as essential household trips, like grocery shopping.

But this is something you must apply and be approved for. Without an occupational license, you’ll need to find someone else to drive you around regardless of the nature of the trip.

Going out of State?

Every state handles breathalyzer laws differently. Unlike Texas, if you refuse breathalyzer in New Jersey this is a criminal offense all on its own.

If you plan on traveling or moving to a different state be sure to read up on the laws you think may affect you.

What About Blood Draws?

So you’ve turned down a breathalyzer, but are you really out of the woods?

Not exactly.

In Texas, there are certain situations that don’t require your consent before a blood draw.

But a warrant is still required. You might be thinking warrants can take a while to be processed, buying you some valuable time.

But if you find yourself in 1 of these following situations, a cop can get their hands on a warrant faster than you can cook an egg on the sidewalk during a Texan summer.

Any of the following will result in a blood test warrant:

  • Death or injury from a car accident suspected to be the resault of drunk driving
  • A child is in the car at the time of the DUI in question
  • You’ve been convicted of 2 DUIs in the past
  • You’re unconscious

Keep in mind that refusing a breathalyzer test can also give an officer access to an almost instantaneous warrant for a blood draw.

If a mobile testing station is nearby, the officer could potentially have your test results as evidence before you even make it to jail.

The Problem with Field Sobriety Tests (FSTs)

It’s no secret FSTs aren’t always accurate. As far back as 1981, researchers found that almost 1/3 of their sober participants could not pass the 3 most common FSTs in a controlled lab setting.

Why? FSTs are based on no more than what we assume a sober person to be capable of.

But walking in a straight, narrow line or trying to balance on 1 leg isn’t as easy as most people think, even when done sober.

Factors, like age, also play a big role in passing these tests. Some go as far as to say these tests are designed to be failed.

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