What Happens If You Refuse a Breath Test?

Katie Hewatt
September 24, 2012

(Criminal law in the US) A field sobriety test is normally not presented as evidence in a driving under the influence criminal proceeding, but it can be used as a basis for reasonable suspicion in an attempt to find probable cause. Depending on the arresting officer, any individual that refuses a breath analysis can be taken to a medical facility for an immediate blood test. Additionally, the officer can take the potential defendant to the police station and administer the test himself. The suspected drunk driver can refuse, but the officer can still charge the individual based on his status as an officer of the court.

Refusing the Breath Test

Sometimes it is a good idea to refuse the breath test, especially for multiple offenders that will be facing additional charges. The license suspension period for refusal is an automatic period, ranging from six months to one year in most states. The refusal is adjudicated on the testimony of the officer, which is all the court needs for a guilty verdict. Anyone making a conscious decision to drink and drive should know beforehand what they will do when presented with a choice, along with understanding the consequences.

An initial driving under the influence charge normally results in a 30-day suspension of driving privileges if the case is not an aggravated charge. Refusing the breath test on a first DUI charge is a bad idea unless the defendant can deal with the automatic suspension. It can also affect a prosecutor’s willingness to reduce the charge, even when the charge could have been reduced to impaired or reckless driving. The suspension is enforced at the time of arrest and not from the time of prosecution. According to our Montgomery County DUI attorney, the officer or prosecuting attorney can delay the court date if they wish and it will take an experienced DUI attorney to request a speedy adjudication.

Breath Test in an Aggravated Case

Charges with aggravating circumstances are usually applied when there is a minor child in the vehicle and the blood alcohol level is .14 or higher. This varies across states, but a blood alcohol level of .18 is an aggravated driving charge without mitigating circumstances. Any suspected intoxicated driver should not expect any mercy from the judge or prosecutor when refusing a breath test.

If the case goes to court, the arresting officer will be there with testimony and the prosecutor will likely be pursuing the maximum penalty. The automatic suspension may be the least of the problems, especially when the defendant is facing incarceration time with substantial judicial latitude for increased sentences and fines.

Breath Test in a Felony DUI Case

Arrests of defendants that occur after a suspect has fled from the police resulting in a high-speed chase can expect a wanton endangerment charge. A misdemeanor fleeing charge can result in a one-year term in a local jail. If the DUI charge is a fourth charge or a third with aggravating circumstances, then the charge can be enhanced to a felony in many states.

Additional circumstances can always make a difference and a DUI attorney will be absolutely necessary when refusing a breath test. The court will appoint one if the defendant cannot afford one. Incarceration periods range from one year to five years in a state facility for a Class D felony.

Katie Hewatt is a legal researcher and contributing author for Steven Kellis, a Montgomery County DUI attorney who has 20 years of jury trial experience and practices all areas of criminal law in State and Federal courts. According to Attorney Kellis, refusal of a breath test poses serious charges and the defendant should contact his office immediately for a consultation.