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Can You Refuse Breath Test and What Are the Consequences?


Refusing to take a breathalyzer test can have severe consequences. Learn more about the various punishments for refusing a breathalyzer test.

Are There Consequences for Refusing Chemical Breath Test?


If you are stopped for suspicion of DUI, a police officer may ask you to submit to field sobriety tests and a breath test.

While standardized field sobriety tests include a series of mental and physical exercises administered by law enforcement officers, breath tests are much more straightforward.

Penalties for refusing to submit to chemical testing such as a breath test can, in some states, be imposed in addition to criminal penalties a driver receives because of drunk driving. In other states, test refusal only results in administrative penalties.

What Is a Breath Test?


A breath test uses a device called a breathalyzer to give law enforcement officers a quick way to determine how much intoxicating liquor is in the driver’s blood.

Breath testing can be done by using either a PAS or an EBT breath testing device.

1. A PAS breath testing device is a small device a law enforcement officer usually uses in the field. Although it gives a general idea if a driver has been drinking, it is not always precise. However, its results can be used as evidence in court.

2. An EBT is a breathalyzer machine usually kept in a police station or jail. It is much more reliable than PAS breathalyzers.

Generally, PAS devices are used before a DUI arrest, while an EBT breathalyzer machine is used after.


How Does a Breath Test Work?


A breathalyzer measures the amount of alcohol in the breath the person exhaled from their lungs. That measurement is known as blood alcohol concentration (BAC).

When a driver who consumed alcohol exhales into the mouthpiece, the device reacts by changing the color of the liquid inside the device. The degree of color change is related to the level of alcohol in their breath, resulting in a numerical value of a person’s BAC.

How Long Does Alcohol Stay In Your System?


According to the American Addiction Centers, alcohol can be detected in a person’s system between 6 and 72 hours after consumption, depending on the test used.

Although a person’s body needs about 4 to 5 hours to process half of the alcohol amount taken, it might take up to 25 hours for the body to process it completely.

So, alcohol detection tests can discover alcohol in an individual’s blood for up to six hours and urine for 12-24 hours or more, depending on how advanced the methods used are. Alcohol on a person’s breath sample can also be detected for 12 to 24 hours after consumption.

The same data shows that a healthy adult can experience the effects of a drink after 15 to 45 minutes. After the BAC reaches 0.05%, the person would most likely exhibit the characteristics of intoxication. Having a BAC of 0.08% or more indicates the person is over the legal limit to drive.


Can You Cheat a Breath Test?


There are many myths surrounding passing a breath test, such as holding your breath, using a strong mouthwash, smoking a cigarette, and even sucking on a penny.

However, these are just myths, and they can not help one pass a breath test. What is worse, some of these options can even result in raising one’s BAC. Not drinking and driving is the only way to pass a breath test. Although a driver can refuse to submit to a breath test, this carries significant consequences.

Can You Refuse a Breathalyzer?


All U.S. states have implied consent laws that state drivers have to submit to DUI testing if they are arrested for drunk driving. However, pre-arrest tests are not mandatory. In other words, drivers can deny a breathalyzer, but they have to be aware that it can carry additional consequences and penalties.

While the prosecution would have a hard time proving their case in this scenario, refusing to submit to a breath test is a separate chargeable offense that attracts a driver’s license suspension and other potential penalties. In some states, a driver who refuses to submit to a breath test can be charged with two separate offenses: drunk driving and refusal to submit to a breath test.

In the District of Columbia (DC), police officers must obtain a person’s consent before submitting them for breath testing. After a DUI arrest, the police must read the Implied Consent Act. The Act states that every individual who operates a motor vehicle consents to a chemical test, including a blood test, breath test, or urine test. These tests determine if a driver is under the influence of alcohol.

Although the driver cannot choose which test to submit, they can object to any type of testing based on valid religious grounds. The driver also has to right to refuse every one of these chemical tests.

However, if an accident that resulted in a fatality has occurred, the driver must submit to some of these tests, especially if the law enforcement officer has reasonable grounds to believe the person was intoxicated. In most cases, their blood sample would be taken to a hospital and tested.

The consequences can be particularly harsh if a driver has a prior DUI conviction on their record. So, if you or your loved one has refused a breath test in Virginia and need help, reaching out to a Virginia DUI lawyer is crucial.

What Happens if You Refuse Breathalyzer?


In DC, refusing a breath test does not carry additional penalties to the drunk driving charges that you may be facing. However, the prosecution will use the refusal against you during the trial. They can argue that you refused the test because you were drunk and didn’t want to provide evidence.

However, the prosecution still needs to provide other evidence showing that a person was intoxicated. To do this, they often rely on the observations of the arresting officers, such as whether they smelled alcohol on the driver or the driver’s behavior.

Sometimes, the less evidence the prosecution has against you, the better. Even though not submitting to breath testing could carry negative consequences, the benefits can outweigh the potential consequences of a criminal case if convicted.

If you were stopped by the police and refused breath testing, ensure you retain a lawyer who can craft a strong DUI defense strategy, which may result in your charges being reduced or dropped.

Penalties for Refusing the Breathalyzer Test


Although refusal to submit to breath testing cannot negatively impact a DUI criminal case, it can have other consequences. For example, the individual can have their driving privileges or driver’s license suspended by the DC Department of Motor Vehicles (DMV) for a year because of a breath test refusal.

Bear in mind that this decision is not automatic. A driver can schedule a DMV hearing within ten days of the arrest. At that hearing, the arresting officer has to prove that the driver was under the influence of alcohol or drugs and that they refused to submit to chemical testing.

If the hearing examiner concludes that the police officer didn’t meet the burden of proof, the arrested driver can keep their license. However, it’s essential to consult with a skilled DUI lawyer with enough experience handling DUI test refusals.

Reaching out to Joseph A. Scrofano of Scrofano Law can make all the difference between being convicted or proving one’s innocence after refusing to provide a breath sample.


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