September 22, 2019

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Breathalyzer: To Refuse or Not to Refuse

Breathalyzer Test

During the holiday season, there’s a chance your joyful festivities will be ruined after one very bad decision: driving after drinking. In most states, the number of DUI citations issued skyrockets during the time from Thanksgiving to New Year’s Day, and a large number of DUI charges result in suspension of a driver’s license, hefty fines, community service, mandatory drug/alcohol education, and even jail time.

People often ask, “Should I agree to a Breathalyzer test if I’m pulled over after drinking?” The best answer we can give is this: If you are certain no alcohol will be detected by the Breathalyzer, take the Breathalyzer test. That is the only circumstance under which the results of the Breathalyzer cannot be used against you.

However, if you refuse a Breathalyzer, you will most assuredly face some serious penalties including the loss of your driver’s license. In most states, if you take a Breathalyzer at the time you’re pulled over or shortly thereafter, you will be able to continue to drive as you await your court date. Also, in most states, people who refuse the Breathalyzer test must surrender their driving privileges almost immediately following the DUI citation.

Refuse the Breathalyzer Test When…

In most states, refusing a Breathalyzer test will result in civil penalties while a DUI conviction will result in criminal penalties. An experienced DUI attorney in your state can explain how the civil offense of refusing a Breathalyzer and the criminal offense of driving while intoxicated differ. The rule of thumb, in most states, is that there are certain circumstances that warrant the refusal of a breath test.

Most DUI lawyers would advise you to refuse the Breathalyzer in these two instances: 1) When someone is injured or killed in the accident you were involved in and 2) If you have a previous DUI conviction. Under these two circumstances, you most certainly must refuse the Breathalyzer test because chemical proof that you were intoxicated at the time of an accident with injuries or fatalities could result in much more serious criminal charges against you.

If you’ve already been convicted of a DUI and submit chemical proof that you’re driving under the influence again, the penalties will be much more serious than your first DUI conviction. Most state DUI law provides for more serious penalties with the second, third, and subsequent DUI convictions.


You need to know that refusing a Breathalyzer is serious business. While you cannot be arrested for refusing a breath test, it can be used against you once your case goes before a judge. Refusing a breath test does not mean you won’t be charged or convicted of DUI. Prosecutors may still base a drunk driving charge on other evidence collected at the scene, including officer observations, witness testimony, or field sobriety test results. Some state laws distinguish between refusing a mobile Breathalyzer (which can carry a small penalty) and refusing a post-arrest blood, urine, or breath test at hospital or police station (which can result in more severe penalties).

The most important thing to know in all of this is that driving after drinking should be avoided. With Uber and Lyft available around the clock in most locations, there’s no excuse to get behind the wheel of a car after drinking.

Driving Under the Influence: A Crime in all 50 States

If you know you will drive after drinking, you should at least know the laws in your state. Every state’s DUI/DWI laws are different; while they may be similar, no two are exactly like. One of the only aspects of DUI that is consistent from state to state is what the legal BAC (blood alcohol content) is for people operating a motor vehicle. In most states, the limit is 0.08%, and in some states, that has number has been lowered to 0.05%. The penalties for DUI convictions vary from state to state, but you can count on one consistency: a conviction for DUI will change your life. It may cost you a lot more than money and time. It may cost you your freedom.

If you’ve been charged with DUI, you must contact an experienced DUI attorney right away. Even if you were issued a DUI citation in a state you don’t live in, you must hire an attorney, as the charge will stand regardless of how you handle it. Most states will issue a warrant for your arrest if you do not appear in court on your scheduled date.

About Lynn Fugaro

Lynn has been writing web content since 2007 after a lengthy career as a middle school English teacher and administrator. Writing web content seemed a natural progression following a career teaching adolescents about the beauty and the power of the written word, and she quickly got hooked on the challenge of writing SEO- and reader-friendly content that could be found on Page 1 of Google and other search engines.

Having written content for physicians and attorneys for the first few years of her writing career, Lynn has most recently produced original, informative, entertaining, and relevant content for the entertainment industry, the automotive industry, senior communities, pet rescues and numerous other businesses hoping to increase website traffic and page views for all clients looking for informative, vibrant content.