Refusing a Breathalyzer Test Under State Law

It is often heard that if you have been stopped for suspicion of driving under the influence of alcohol and asked by the officer to take a Breathalyzer test, you would be well served by refusing to take it (More on talking to a lawyer before).  However, as alcohol-related accidents have increased, legislatures across the United States have passed “Implied Consent” statutes, meaning that by obtaining a driver’s license in that state, or by driving on the roads in that state, you have impliedly consented to take a Breathalyzer if asked to do so by an officer.  Therefore, it is not wise to refuse to take a Breathalyzer.  However, many states have specific rules about who can administer the test, so it is still important to know your rights (More on a bad Breathalyzer).  This article will analyze the relevant law in five states to provide an overview.

Defense Against Breathalyzer Test Refusal

In all, states have made it a punishable offense to refuse to take a Breathalyzer test if a police officer stops the driver on suspicion of driving while under the influence. However, drivers in most states still have certain rights, such as the right to be advised of the penalty for refusal and the right to have an independent third party administer the test. (See also Causes of Breathalyzer Error).

Therefore, be sure to consult the relevant law in your state before an incident arises. If you are arrested for driving under the influence, it is wise to contact an attorney in your state who may be able to reduce your punishment or even have your case dismissed if your rights were unlawfully violated:

State DUI Laws for Implied Consent

Alabama DUI

In Alabama, when a person applies for a driver’s license they are automatically agreeing to the Alabama implied consent law. This means that if you are stopped in Alabama on suspicion of a DUI, you must agree to submit to a blood, breath or urine test to prove your intoxication level.   Failure to submit to this test for a first time offender will result in an immediate 90-day license suspension with no chance of obtaining driving privileges during that 90-day period. If it is determined that the refusal is a second or subsequent refusal within the past five years, there is a one-year license suspension with no chance of obtaining driving privileges during that one-year period.  See the relevant Alabama statute here.

California DUI

In California, anyone who is 21 years of age or older who refuses to submit to a breath, blood or urine test will receive a mandatory one-year license suspension for a first DUI offense. A second DUI offense within ten years will result in a mandatory two-year revocation for test refusal. A third or subsequent offense within ten years will result in a mandatory three-year license revocation.  See California Implied Consent Law.

Illinois DUI

In Illinois, chemical testing is similarly allowed.  However, the arresting officer is required to advise the defendant of the penalties for refusing the tests and the license suspension periods. Here, as in other states the defendant has the right to an independent test performed by a qualified person of the defendants’ choice.  Yet the costs associated with the independent testing is the defendants’ responsibility. See Illinois Implied Consent Law.

Massachusetts DUI

In Massachusetts, chemical testing is also allowed, and again, the officer must inform the defendant of the penalties for a test refusal.  Fortunately, there is no immediate license suspension for test results, but test refusal results in a 120-day to one-year license revocation and is admissible in a license revocation hearing.  See Massachusetts DUI Law for a full overview.

New York DUI

Finally, in New York anyone who refuses to take a chemical test can receive a driver license revocation of at least one year and must pay a $500 civil penalty ($550 for a driver of commercial vehicles with a CDL) to apply for a new driver license. A driver who refuses a chemical test during the five years after a DWI related charge will have their driver license revoked for at least 18 months and must pay a $750 civil penalty to apply for a new driver license.  See New York Implied Consent Law..

  1. You believe you weren’t actually driving while intoxicated
  2. You have received one or more citations for DUI in the past, it is advisable to contact an attorney to help protect your right to drive