Can You Refuse A Breathalyzer Test? (April 2025)

Implied Consent Laws and Breathalyzer Refusals

In the United States, driving a car is considered to be a privilege, not a right. Under implied consent laws, drivers who use public roads implicitly consent to chemical testing if they are arrested on suspicion of DUI. Failing to consent to that testing after arrest may lead to civil and even criminal penalties.

Distinguishing Between Pre- and Post-Arrest Breathalyzer Tests

Can you refuse a breathalyzer? Before examining the potential consequences of refusing a breathalyzer test, it’s essential that you understand the difference between the test you take in the field and the one you’re given at a police station.

Field Breathalyzer Tests

Portable field breathalyzer tests are not as precise as the larger machines typically found at police stations. This means that in most states, they cannot be used in court as evidence that a driver was intoxicated. However, they can serve as probable cause to arrest someone on suspicion of DUI.

If an officer administers a field breathalyzer test and your blood alcohol concentration (BAC) is over your state’s legal limit, you will likely be arrested. However, most states also allow officers to arrest you if you show signs of intoxication but are not over the legal limit.

Post-Arrest Breathalyzer Tests

In most states, you will be asked to take a breathalyzer test at the police station after your arrest. These breathalyzers are larger and more accurate than the portable units often used in the field. Because of their accuracy, readings from these breathalyzers are often used in court proceedings.

It might seem like failing a post-arrest breathalyzer test guarantees a conviction. Testing over the legal limit makes conviction more likely, but skilled DUI lawyers understand how to challenge breathalyzer readings.

Breathalyzers are very precise, but they require periodic maintenance and calibration to stay that way. Your attorney may be able to acquire the maintenance records for the machine used in your case. If there’s any evidence to suggest the device may have been compromised, your lawyer may argue for your case to be dismissed.

What Happens if You Refuse a Breathalyzer Test?

So can you refuse a breathalyzer? Discussions of the consequences of refusing breathalyzer tests don’t always distinguish between roadside tests and post-arrest breathalyzers.

You generally have the right to refuse a breathalyzer test in the field, but you will likely be arrested for DUI if you do. However, if you refuse to take a post-arrest breathalyzer test or blood test, you’re much more likely to face serious penalties.

License Suspension

Because driving is considered a privilege and not a right, most states will suspend your license as soon as you are arrested for DUI. Many will also suspend your license if you refuse to take a post-arrest breathalyzer.

These suspensions vary in length, but they can be up to a year. If you are convicted of a DUI and have your license suspended, the new suspension may run consecutively to your previous one.

Additional Criminal Charges

Some states treat refusing a chemical test after arrest as a separate criminal offense. If you won’t take a blood or breath test to measure your blood alcohol concentration (BAC), you could face jail time, fines and other penalties. If you have previous DUI convictions, you’re more likely to be criminally charged for not taking a breathalyzer test.

Prosecution

Some people refuse to take breathalyzer tests because they think it will save them from criminal prosecution for DUI. However, there is a high likelihood you’ll be prosecuted for the DUI with or without a breathalyzer. The state may still have considerable evidence against you, such as:

• Dashcam or bodycam video of the traffic stop
• The arresting officer’s testimony related to how you were driving when pulled over
• Testimony about the smell of alcohol on your breath and other signs of intoxication
• Testimony from any witnesses present near the traffic stop

If your case goes to trial, your refusal of a breathalyzer will likely not work in your favor. To most juries, the refusal itself makes you look guilty. Because the jury has no reference point, they can easily assume you were more intoxicated than you actually were.

The bottom line here is that while many people refuse breathalyzer tests to protect themselves, that action can often harm your case. However, because each individual situation is different, you should consult a lawyer before deciding whether to take or refuse a breath test.

Have You Been Arrested for DUI?

If you’ve been arrested, the most important thing you can do for yourself is hire a DUI lawyer. You shouldn’t rush through this decision — the right lawyer may make the difference between going to jail and being acquitted.

But how do you choose the right lawyer for you? That’s where we come in. At ConsumerShield, we’re dedicated to helping consumers understand the law and connect with experienced attorneys nearby. Fill out our form to get started with a free case review today.