What Happens If You Refuse a Breathalyzer Test?

A Breathalyzer is a required test when you are suspected of DWI. Your refusal to take the test can be used against you in the courtroom and result in the immediate suspension of your driver’s license.

It’s always best to consult a DWI defense attorney if officers stopped you for drunk driving. They can often achieve a better outcome if you’re charged with driving while under the influence of alcohol and/or a refusal of a Breathalyzer.

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The Law of Implied Consent

When you’re issued a driver’s license, you give your implied consent, by law, to submit to chemical tests – Breathalyzer, blood test, or urine sample. This lawful consent is a type of trade-off for the privilege of driving a car. Implied consent is, therefore, a permission or an agreement that is not directly expressed but understood.

Examples of Legal Breathalyzer Refusals

If you refuse the Breathalyzer test, you’ll be charged for refusing the test. Even if you don’t clearly agree to the test, it can be seen as a refusal. An ambiguous response, conditional response, or silence is considered the same as a direct refusal.

Silence

To agree to a Breathalyzer test, the accused must show a willingness to take the test. While you have the right to remain silent, this right does not apply to consenting to a Breathalyzer test. In this case, your silence is construed as a refusal.

Insufficient Samples

Sometimes, after consenting to a Breathalyzer, a person intentionally minimizes the air they blow into the machine or cannot provide enough air to register a valid reading. This result can also be considered a refusal.

Outright Refusal

When you give the officer a flat “no,” a summons for the refusal is automatically filed, and your license is suspended. In the interim, you can also lose the right to have a conditional license.

Delaying the Test

This type of refusal happens when a person attempts to delay the testing. Any efforts to stall the test may be interpreted as a refusal.

Conditional Consent

You should say “no” or “yes” when asked to perform a Breathalyzer test. Saying anything other than an affirmative and unconditional response is considered a refusal.

If you refuse to submit to the test, you may still be charged with driving while intoxicated or under the influence. Police do not need the test to convict you of the crime. If they have probable cause, it’s enough to make an arrest.

The Penalties for Refusing

Refusing a Breathalyzer test is considered a separate traffic violation, which triggers an instant license suspension. For a first offense, you may have your license suspended for as long as a year and pay a penalty of up to $500. Repeat offenders face larger fines and longer suspensions. Regardless of the form a refusal takes, it can get pretty expensive.

Your Miranda Rights versus Your Right to a Refusal

Your right to refuse a Breathalyzer test is your right alone. Don’t confuse this right with your Miranda Rights – such as the right to remain silent or have a lawyer present.

Once the Breathalyzer test is confirmed, a police officer may read you your Miranda Rights. Then, immediately contact a DWI attorney about your DWI arrest and do not answer police questions.

Field Sobriety Testing

Besides chemical tests, the police may administer field sobriety tests (FSTs). Tests include the walk and turn, the horizontal gaze nystagmus (HGN), and the one-leg stand.

These tests are often given roadside. Unlike the chemical tests, you won’t get into trouble if you refuse these tests. If you haven’t been drinking or are not impaired, you might go on your way without an arrest.

If you fail a field sobriety test, an officer has enough proof for probable cause to make an arrest. They will also have the evidence needed for a prosecutor to present a case at trial.

Even if you refuse FSTs, you’ll usually be arrested for DWI, and your refusal, while lawful, will still be admissible at trial. While a refusal creates a negative inference, it still is a much weaker form of evidence than if the police have video proof of your failing an FST. So, if you’re intoxicated, you may be better off if you don’t submit to an FST and take the Breathalyzer once you get to the station.

What a Criminal Defense Lawyer Will Examine If You’ve Refused Testing

A criminal defense lawyer who handles DWI cases will assess the circumstances of a Breathalyzer refusal by asking specific questions. These questions review the level of intoxication, the legal procedures for testing, and the defendant’s understanding of taking or refusing the test.

Questions a Lawyer May Ask

For example, a lawyer may ask the following questions:

• Did the police have enough of a reason to believe the accused should be tested for intoxication?
• Did the police officer inform the driver of their rights regarding the test?
• Did the defendant refuse the Breathalyzer, or was there a language barrier?
• Did the defendant understand what the police officer was requesting?

When a DWI attorney handles these cases regularly, they have the knowledge and experience to identify issues with your charges – issues that may reveal a charge for a Breathalyzer refusal was improper and, therefore, should be dismissed.

Your Rights for Submitting to a Breathalyzer Test

When you take a breath test, the police should inform you of your rights and the penalties for refusing the test.

The arresting officer must advise you of what will occur if you don’t follow the law for implied consent for chemical testing. They will advise you that you don’t need a lawyer present when you take the assessment.

They may also indicate that you’ll be issued a summons or that you’ll be separately charged for the refusal. Any revocation or suspension for the refusal is separate from the DWI charge. When they ask if you’ll submit samples of your breath, you should directly answer “yes” or “no.” You should clearly state your answer so that it’s straightforward and not confusing or ambiguous.

The Two Types of Breathalyzer Tests

Breathalyzers are preliminary alcohol screening (PAS) tests or evidential breath tests (EBTs). The police use small portable handheld devices for PAS testing in the field. Because of their size and portability, they’re not always accurate.

If the police stop you for suspicion of DWI, pull you over for a traffic violation, or you get involved in an accident, they may ask you to take a preliminary breath test or PAS assessment. This test is also called a portable breath test (PBT) and is performed, as mentioned, with a handheld device.

While you’ll probably be arrested for DWI, a PBT is not usually admissible at trial. Again, portable Breathalyzers are not always reliable, so they’re not deemed admissible in court.

The EBTs are the larger, stationary machines featured in police stations. A police officer may use the PAS device before they make an arrest and then use an EBT to validate the test results.

BAC Levels

While the BAC level in most states is .08 percent, it helps to know how BAC levels can impact a person’s abilities and perceptions. Below are BAC levels and how they relate to the physical and cognitive effects of drinking alcohol.

• 0.01 to 0.05 – The person feels a slight buzz, less inhibited and alert.
• 0.06 to 0.10 – Emotional, sleepy, numb, and a reduced memory. The coordination is also affected.
• 0.11 to 0.20 – Shifts in mood, mania, and improper behavior.
• 0.21 to 0.30 – Depression, aggressiveness, blurred vision, and poor reasoning. 
• 0.31 to 0.40 – Unconsciousness or coma.
• 0.41+ – Possible death. 

Techniques Used to Measure BAC

A Breathalyzer may use different methods to measure a person’s BAC. Breathalyzers are made with semiconductors, infrared optical sensors, and electrochemical fuel cells to measure BAC results. Researchers are also developing Breathalyzer devices that are compatible with smart devices.

For instance, when an infrared cell is used, the cell directs infrared energy through the breath sample with the unabsorbed energy used to detect the BAC. The higher the concentration of the ethanol, the more infrared absorption occurs. This can be likened to a sunglass lens absorbing visible light.

The accuracy of the breath sample depends on the volume of deep lung (alveolar) air. As a driver breathes out, the device monitors the expired air using an infrared cell. The concentration of the ethanol escalates as the sample breath is analyzed, ensuring a precise alcohol reading. The volume of air a person blows depends on the size of their lungs.

If alcohol is in the mouth, the ethanol concentration quickly peaks when an evidential test is given. If an infrared cell monitors the breath profile and detects this peak, the test is aborted, and a blood test is ordered instead. Sometimes, devices register an interfering substance, which aborts the breath test and requires blood testing.

How a DWI Lawyer Can Help You If You’ve Refused a Breathalyzer Test or Arrested for DWI

If you refused a Breathalyzer test and were convicted of DWI, you must speak to a DWI attorney about your case. They can benefit you in the following ways.

Challenging a Breathalyzer Refusal

A DWI attorney can challenge the legality of the refusal, arguing that you may not have been properly advised of the consequences or that the police lacked probable cause to request the test.

Suppression of Evidence

A DWI attorney can file motions to suppress evidence not obtained legally, such as arrests without probable cause, violations of your constitutional rights during an arrest, or an improper traffic stop.

Plea Bargaining or Negotiation

If the evidence against you is strong, a DWI attorney can, in some instances, reduce the charges through plea bargaining.

However, some states, such as New Jersey, will not allow plea bargaining for a first Breathalyzer refusal or DWI. In these cases, a lawyer may find another way to minimize the consequences of the arrest. For example, they may offer mitigating circumstances or alternative options for sentencing.

For DWI offenders who spend time in jail, the sentence, on average, is 11 months – almost a year. That’s why you must speak to a DWI lawyer. They can help you stay out of jail and pay restitution with fewer penalties.

Challenging the Test Results for the Chemical Test

Your attorney may challenge the accuracy and reliability of the Breathalyzer test results if you agree to the testing. They may challenge the processes used to collect and analyze the samples or argue that the equipment was improperly calibrated or configured.

Appealing the Conviction

If you’ve already been convicted of a DWI, an attorney can file an appeal, proving that certain procedural violations or a legal error occurred during the trial. Doing so may lead to a new trial or a reversal of the DWI conviction.

Contact a DWI Lawyer Today

Refusing a Breathalyzer test carries major consequences, including the suspension of your driver’s license and potential fines and jail time. Even for a first offense, you may be facing these penalties. By relying on the skills of a New Jersey criminal defense lawyer , you can work to minimize the penalties and protect your rights throughout the legal process.