Implied Consent: Can You Refuse a Blood, Breath, or Urine DUI Test

Are drivers required to submit to blood alcohol testing?

During a DUI or traffic stop, an officer who suspects a driver of being impaired driving will usually ask the driver to do an array of roadside sobriety tests. Depending on the driver's performance or other indications of intoxication (the driver isn't normally required to participate in field sobriety tests), the officer might place the driver under arrest. After making a DUI arrest, the officer will typically ask the suspect to take a breath, blood, or urine test (collectively called "chemical tests") to determine blood alcohol content (BAC) or the amount of drugs in the suspect's system.

But can you lawfully refuse to participate in blood alcohol testing? If not, what happens if you refuse to take a chemical test?

Every state has some form of "implied consent" law that covers DUI chemical testing. Implied consent means that by driving on state roadways, the driver impliedly agrees to take a chemical test if lawfully arrested for driving under the influence.

This article gives an overview of your rights when confronted with a chemical test request and the consequences of an unlawful refusal.

DUI Implied Consent Laws and Your Rights

All states have implied consent laws that require drivers to take a chemical test if requested to do so by an officer. But it's not quite that simple. For this requirement to apply, the driver generally must be lawfully under arrest for an impaired driving offense. A DUI arrest is lawful only if the officer has reasonable grounds to believe that the suspect was operating while under the influence of drugs or alcohol. Reasonable grounds might include things like poor field sobriety test performance, reckless driving, and smelling like alcohol.

Assuming a lawful DUI arrest, the implied consent laws of most states authorize the officer to choose which type of test to request the driver take. In most cases, the officer will request the driver take a breathalyzer or blood test.

You generally don't have the right to talk to an attorney before deciding whether to take a chemical test (only a few states afford drivers this right). But, in most instances, you do have the "right" to refuse testing—unless an officer obtains a search warrant, you typically can't be physically forced to submit to a breath, blood, or urine test. However, exercising your right to refusal comes with consequences. Implied consent laws penalize drivers who refuse an officer's lawful request for testing.

Consequences of Refusal

So, what happens if you refuse a breathalyzer or blood or urine test? The purpose of implied consent laws is to get drivers to comply with DUI chemical testing. The way implied consent laws achieve this purpose is by penalizing drivers who refuse testing.

Here are some of the more common repercussions of refusing DUI chemical testing.

License Suspensions for Implied Consent Violations

When a driver unlawfully refuses a chemical test, the officer will typically issue a notice of license suspension to the driver. The duration of a refusal suspension depends on state law and the driver's history. But it's common for refusal suspensions to be one or two years. The duration of a refusal suspension is usually substantially longer than the suspension (sometimes double) that would result from a failed test (a result that shows a BAC that's above the legal limit) or DUI conviction.

In most states, drivers who lose their license for a failed DUI chemical test or DUI conviction can get a restricted license for driving to and from places like work and school. But drivers who refused testing are sometimes ineligible for a restricted license.

Refusals Can be Used Against You at Trial

In many DUI cases, the driver's chemical test results (showing how much drugs or alcohol were in the driver's system) are instrumental for the prosecution in proving the charges. So, when a driver refuses testing, it typically makes it more difficult for the prosecution to prove its case.

To counteract this benefit to drivers of refusing a test, state laws allow prosecutors to mention the driver's refusal at trial. While refusal doesn't exactly prove intoxication, prosecutors can argue a refusal is indicative that the driver was trying to hide intoxication. And jurors are entitled to consider refusal as evidence of guilt. So, even without chemical test results, a driver can still be found guilty of driving under the influence.

Criminal Penalties for Refusing DUI Testing

In most states, an unlawful DUI test refusal will result only in administrative license-related penalties imposed by the Department of Motor Vehicles. But a few states have criminalized unlawful refusals. In other words, drivers who refuse testing can be charged with a criminal offense separate from a DUI charge. Drivers who are convicted of an unlawful refusal normally face fines and jail time similar to what would result from a DUI conviction.


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