Breathalyzer Tests And Implied Consent — Why And How To Refuse

Posted on: 16 November 2022


Every American enjoys certain inalienable legal rights. For instance, most people are familiar with their right to remain silent or to request an attorney. 

However, what are your rights and responsibilities when it comes to roadside breathalyzer tests? Can you refuse to take one? What happens if you do? And how will it affect potential OWI (operating while intoxicated) charges? Here's what every driver needs to know.

How Does Implied Consent Work? 

Taking a breathalyzer test after being pulled over isn't a decision that solely happens on the side of the road. In fact, states follow a legal concept known as implied consent. 

What Is implied consent work? By applying for a driver's license and using the roads, each driver has agreed to submit to a blood alcohol concentration (BAC) test when law enforcement has cause to seek one. Consent is implied. 

Can You Still Refuse a Test?

Despite implied consent, drivers are still generally permitted to refuse such a test. However, there are two important caveats if you choose to decline. 

First, it doesn't preclude officers from arresting and charging you with an OWI or DUI even without the test. They have the right to make a probable cause determination based on other factors, such as how you drive or behave during the stop. They just don't have the immediate scientific evidence wanted. 

Second, you will likely face penalties for violating these implied consent rules. In most states, these penalties are fines or other administrative disciplines. In a decreasing number of states, though, it could result in jail time or other criminal charges — separate from the OWI charge. 

Should You Refuse a Test?

In many cases, it may seem logical for a driver to refuse to take a breathalyzer or even perform other field sobriety tests. The reason? While you may face certain penalties, these may be less of a risk than handing officers definitive evidence that you are driving while impaired. 

Of course, this decision is a personal one. The laws may give you the right to refuse, but they also put serious penalties for exercising this right in the light of implied consent. 

Where Can You Get Help?

If you've already had an OWI charge and either exercised your right of refusal or not, start protecting yourself by meeting with an experienced OWI lawyer in your state. 

Even if you haven't yet faced this tough decision, every driver should learn more about implied consent so that they can meet the challenge that may happen at any time on the road. Contact a local OWI lawyer or click here to find out more.