Introduction
If you are pulled over on suspicion of drunk driving, one of the most consequential decisions you will face is whether to agree to a breath test. The answer is not as simple as many people think — and the consequences of refusing can be just as serious as the consequences of failing. Understanding how breath test laws work before you are ever in that situation is critically important.
Two Different Types of Breath Tests
It is essential to understand that there are two distinct types of breath tests — and the rules are very different for each.
Preliminary Breath Test (PBT) — Roadside Test
This is the handheld breathalyzer test administered at the roadside before you are arrested. In most states this test is optional and you can refuse it without automatic legal penalty — though refusal may give the officer grounds to arrest you. The results of a PBT are generally not admissible as evidence in court in many states but can be used to establish probable cause for arrest.
Evidentiary Breath Test — After Arrest
This is the more accurate test administered at the police station after you have been arrested — typically using a larger, more sophisticated machine. This is the test that matters most legally. Refusing this test triggers serious automatic consequences under implied consent laws in every state.
What Are Implied Consent Laws?
Every state has implied consent laws. By obtaining a driver’s license and driving on public roads, you automatically consent to chemical testing — breath, blood, or urine — if lawfully arrested on suspicion of DUI. Refusing the evidentiary test after arrest is not a free pass — it triggers automatic administrative penalties separate from any criminal charges.
What Happens if You Refuse the Evidentiary Breath Test?
Refusing the post-arrest evidentiary breath test typically results in:
- Automatic license suspension — typically 1 to 3 years for a first refusal, longer for subsequent refusals
- Mandatory installation of an ignition interlock device in many states
- The refusal itself can be used against you in court — prosecutors can argue that you refused because you knew you were intoxicated
- In some states, refusal is a separate criminal offense
- You may still be convicted of DUI based on other evidence such as officer observations, field sobriety tests, and dashcam footage
What Happens if You Take the Test and Fail?
If your blood alcohol content (BAC) is 0.08% or higher — the legal limit in all states — you will face:
- DUI or DWI charges
- License suspension
- Potential fines, probation, jail time, and mandatory DUI education programs
- Increased insurance rates
- A criminal record
However the test result is direct evidence that can be challenged in court — for example by questioning the calibration of the machine, the officer’s training, or the testing procedure.
So Should You Refuse or Comply?
This is one of the most debated questions in DUI law and the answer depends on your specific circumstances. Here are the key considerations:
Arguments for Complying with the Test
- If you are not intoxicated or your BAC is below 0.08% passing the test ends the matter quickly
- Refusal carries its own serious automatic penalties that apply regardless of whether you are convicted of DUI
- Refusal can be used against you in court
- In some states refusal results in longer license suspension than a first-offense DUI conviction
Arguments for Refusing the Test
- Without a breath test result the prosecution has less direct evidence of your BAC
- It may be harder to prove the DUI charge beyond a reasonable doubt
- Some DUI attorneys argue that in certain circumstances — particularly when BAC may be very high — the penalties for refusal may be preferable to the penalties for a DUI conviction
Can the Police Force You to Take a Blood Test?
In some circumstances yes. Following the Supreme Court’s decision in Mitchell v. Wisconsin (2019), police may in certain situations conduct a warrantless blood draw from an unconscious driver. In other circumstances police can obtain a warrant for a blood draw if you refuse. Laws vary significantly by state.
Field Sobriety Tests — Are They the Same?
No. Field sobriety tests — such as the walk-and-turn, one-leg stand, and horizontal gaze nystagmus test — are different from breath tests. In most states you can refuse field sobriety tests without automatic license suspension. However refusal may still be used as evidence against you and will likely result in arrest. Field sobriety tests are notoriously subjective and even sober people sometimes fail them.
The Most Important Thing to Do
If you are arrested for DUI — whether you took the breath test or refused — contact a DUI attorney as soon as possible. You typically have only 7 to 10 days to request a hearing to contest the automatic license suspension. An experienced DUI attorney can evaluate your case, challenge the evidence, and advise you on the best strategy for your specific situation.
The information on LegalConsultants.com is provided for general informational purposes only and does not constitute legal advice. Always consult a qualified DUI attorney for advice specific to your situation.