If you've had one drink too many, seeing flashing lights in your rearview mirror could lead you to a tough decision. You could be asked to take a breathalyzer test, a portable preliminary alcohol screening.
Breathalyzers are one way for the police to determine if a driver is legally intoxicated (based on your state's "legal limit"). Some other options are urine and blood tests (often administered at a hospital after a crash), the "walk-a straight line and turn" test or the "one-legged stand" test, says William Gregory O, a partner and defense attorney at Lex Scripta, LLC in Streamwood, Ill. "The breathalyzer is commonly used during traffic stops."
And even though a traffic cop might imply that you have no choice but to agree to a breath test, attorneys say that's not the case. You can refuse - but refusing could have serious legal consequences.
The downside for refusing a breathalyzer
The consequences for refusing a breathalyzer vary considerably from state to state.
- In California, refusing is implied if you don't blow hard enough into the breathalyzer, or are unable to give consent due to unconsciousness. However, if you refuse the initial breathalyzer but then give no objection to the drawing of blood later, you can't be charged with a refusal. Refusal in California may result in an additional citation (for refusing) as well as a one-year license suspension.
- Refusal in Florida results in a one-year license suspension.
- Refusing to take a test in Illinois can result in a one-year suspension even if you weren't drunk.
- If you live in Pennsylvania, even if you're under the legal limit for blood alcohol content, you'll lose your license for one year for refusing a breathalyzer, says Bruce Barket, a partner at Quadrino Schwartz who specializes in criminal and traffic defense.
- Refuse to blow in New York and you'll automatically lose your license for six months and could be subject to a $500 fine.
- Refusing in Texas results in an automatic 180-day license suspension.
Barket also notes that if you do refuse, "in some states the police can get a court order allowing them to forcibly take your blood."
Gregory O adds that many lawyers have successfully argued automatic suspensions off their clients' records, or had them drastically reduced.
Car insurance rates and breathalyzers
Yourcould be in jeopardy if your state has consequences for refusing a breathalyzer. Auto insurance companies will generally cancel your policy if your license is suspended during the policy period.
If you're ultimately convicted of a DUI, expect your car insurance rates to double - at minimum. You could also be dropped by your insurer.
The upside of refusing a breathalyzer
If you do refuse a breathalyzer and aren't forced to take a blood or urine test, the prosecution won't have any evidence against you proving you were over the limit, says Wendy A. Hudson, deputy public defender in Wailuku, Hawaii. "This is especially important if you are stopped in a road block where every certain car through [like every fifth car, for example] is given a breathalyzer because there's no bad-driving pattern for them to use against you, like if you were stopped because you were weaving."
Refusing a breathalyzer also keeps any results from being used against you. "Breathalyzer results can be used as evidence against you, and if you fail a breathalyzer, you may contribute to your being convicted of DUI," says Gregory O. If there's no breathalyzer result, he says the prosecution must rely on other evidence -- like the police officer's account of your driving and other field tests -- to prove a DUI case against you.
"Attorneys have greater success casting doubt over other aspects of the case, such as field sobriety test results, than they do arguing against the results of a breathalyzer," he adds.
A nation of refusers
Refusing the test is becoming commonplace. About 41 percent of people arrested in cases of drunken driving refuse to submit to breath testing, according to the Illinois Secretary of State's office. The Texas State Senate says more than half of those stopped in the state for suspected DUI refuse a breathalyzer.
But to avoid ever needing to decide whether to say "no," Hudson suggests you download a phone app that calculates your blood alcohol level before you slide behind the wheel. "Use it even after having just one drink," she advises. The results aren't scientific, but the app can make you more aware of your lack of sobriety. (Or you could simply plan ahead: CarInsurance.com's What's Your Limit calculator will give you an idea of how much you can safely consume -- and it spells out state-by-state penalties if you cross the line.)