In recent years awareness has grown and outrage has mounted about the carnage wrought by people driving under the influence. As a result, drunk driving laws and the methods to enforce them have toughened from coast to coast. One of the most important tools utilized by law enforcement to remove drunk drivers from the road is the breathalyzer. Its use, however, has become increasingly controversial.
As breathalyzers have become omnipresent they have also become more and more controversial. Serious questions have arisen about both their dependability and the way they are employed by law enforcement. This increasing skepticism has fueled a breathalyzer backlash of sorts and raised other questions including whether or not a person can refuse to take a breathalyzer and if so, what are the consequences of such a refusal?
CAN YOU REFUSE TO TAKE A BREATHALYZER?
The short answer is “Yes”. But it’s a qualified yes. If you are stopped while driving you cannot be compelled by law enforcement to blow into the breathalyzer. So if you don’t want to subject yourself to a potentially compromising result you can respectfully decline. That’s the good news. The bad news is that, since driving is considered a privilege and not a right, there will be consequences to declining the officer’s invitation to incriminate yourself.
THE POWER OF IMPLIED CONSENT
Because driving is a privilege and not a constitutional right you agreed (probably without being aware of it) to abide by all the rules and regulations that come with that privilege when you accepted your license. This is called implied consent and it’s a powerful tool officialdom tends to wield with a heavy hand when it comes to enforcing drunk driving laws. Since you have given your implied consent to play by the rules and the rules strongly suggest you should cooperate with a breathalyzer test, if you then refuse to take a breathalyzer:
You may be subjected to a field sobriety test (FST) – The field sobriety test or FST is typically administered to confirm that the driver is in an impaired state. Should you refuse a breathalyzer test you will be asked to undergo an FST. Just as with the breathalyzer, however, you have the right to refuse a field sobriety test. But be forewarned that by refusing both the breathalyzer and the FST you will incur the wrath of the authorities. That typically means that your double refusal will be used against you at every stage as your case proceeds through the system.
You may be taken into custody anyway if the officer believes you are intoxicated – If the officer has reason to suspect that you are operating under the influence he or she does not need a breathalyzer result to take you into custody. While it will be more difficult for the state to convict you without test results you need to keep in mind that at trial it will be your word against that of the police officer. Other witnesses may also testify including other officers who encountered you in the police station.
Your license will likely be suspended until your case is resolved – It is likely that if you refuse a breathalyzer your license will be suspended while your case works its way through the system.
You may be convicted of DUI based on other evidence (including your refusal) – If you refuse a breathalyzer there is a good chance you may be convicted anyway based on the above-mentioned police testimony as well as any testimony gleaned from other sources. In many states, your refusal to take a breathalyzer can be admitted as evidence against you as well.
If you are convicted the penalties are likely to be harsher because you refused the breathalyzer – Most states take a dim view of those who refuse to submit to a breathalyzer or FST. Many have laws which stipulate tougher penalties for those who refused the test and are convicted of DUI nonetheless.
Bear in mind too that in some states the officer may take your driver’s license on the spot and issue you a temporary one if they determine you are impaired; breathalyzer or not. You will then need to jump through considerable hoops to get your permanent license back.
THE CONSTITUTION TO THE RESCUE?
No one is questioning the need to remove drunk drivers from the roads. What is being questioned are the methods employed to achieve that goal. It has dawned on more than a few people that the breathalyzer seems to amount to little more than an attempt at forced self-incrimination. That, of course, would bring it into conflict with the fifth amendment of the US Constitution which stipulates no person “shall be compelled to be a witness against himself”.
THE GEORGIA PRECEDENT
In late 2017 the Supreme Court of Georgia ruled that refusal to take a breathalyzer test could no longer be used against a person in subsequent legal proceedings. The justices in the case concluded that breathalyzers were by their very nature self-incriminating. As such, a person was well within their rights to refuse and that refusal could not be held against them. The bottom line is that people in Georgia can now refuse to a breathalyzer both prior to and following an arrest and they cannot be punished for doing so or have their refusal used against them in court.
Of course, the state is not out of options should you refuse to take a breathalyzer because you could still lose your license for up to a year simply for refusing. Remember, driving is a privilege, not a right. And that privilege can be revoked for just about any reason the authorities deem appropriate.
THE ROAD AHEAD
Many are looking to the Georgia ruling as perhaps the beginning of the end for strong-arm tactics revolving around breathalyzers nationwide. But whether the ruling turns out to be the beginning of the end for breathalyzers or a bump in the road that prompts new, harsher on-the-spot penalties for refusing remains to be seen.