I'd recommend you retain a lawyer and plead not guilty. You are presumed innocent until proven guilty. The prosecutor must prove any allegations beyond a reasonable doubt. You have a right to council. OUI's carry significant license sanctions that go beyond just jail time and probation. Never plead guilty to anything unless you fully understand all the risks. Speaking generally, the answer depends on when and where you are refusing the test. In certain situations if you refuse the test, the act of refusing a test may be charged as a civil infraction which carries significant license sanctions and penalties.

Answer Applies to: Michigan
Replied: 11/3/2011

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You can refuse to take the breath test at the roadside during an initial stop. If you refuse this test, the officer will likely arrest you for DWI. However, you have a greater chance of getting your case dismissed (or charges not brought at all) due to the police officer's lack of probable cause to arrest you. Whenever a police officer pulls you over, s/he is looking for indications that you are driving while intoxicated. This is why officers perform numerous tests rather than just one (such tests include the horizontal nystagmus test, the walk and turn test, the one-leg stand test, asking you how many drinks you've consumed, smelling your breath for alcohol, looking for bloodshot and watery eyes or slurred speech, and finally the roadside breath test). If you refuse the breath test altogether, refuse to perform the roadside tests and also decline to answer the officer's questions, you have a far greater chance of winning your case by showing the officer did not have enough evidence to arrest you for DWI. On the flip side, refusing the breath test at the police station is a gross misdemeanor punishable by a maximum of 1 year in jail or a $3,000.00 fine, or both. You will also automatically lose your driver's license for 1 year.

Answer Applies to: Minnesota
Replied: 11/2/2011

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There are a variety of possibilities. Assuming the police had the proper reasons for the stop, arrest and the demand to blow, you could lose your license to drive. Additionally, you can be charged with a crime for refusing.

Answer Applies to: Hawaii
Replied: 11/2/2011

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The law in New York states that walking on the streets is a right, but driving a car is a privilege. So, if the police ask an individual driving a vehicle is requested to breathalyze, he has an obligation to do so. You should be aware of the repercussions if you do refuse. The Department of Motor Vehicles will suspend your license for at least 12 months, with no opportunity for a conditional license to drive to work. A second test refusal within five years of a previous refusal or DWI conviction is an automatic license suspension of 18 months or more. You can still be convicted of DWAI (possibly even DWI) if police have other evidence of impairment. Even if you do beat the criminal charges, your license will still be suspended. You must reapply for your license and pay steep renewal fees after the revocation period. It is possible to challenge a refusal citation and license suspension on grounds that there was no probable cause for the traffic stop and field sobriety tests prior to refusing the breathalyzer.

Answer Applies to: New York
Replied: 11/2/2011

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If you are suspected of DUI/DWI and the cop asks for a breathe test - chances are you are going to be arrested no matter the result. That is very important to understand, once the officer thinks you are intoxicated, it is difficult to prove to him/her you are not and they have (95% of the time) already made a decision on arrest, the breathe test is just to back up that decision. It is also important to note that the portable breathe test (PBT) is not admissible in court. The Breathe test at the station is admissible and you have an absolute right to refuse one or both. If you refuse there are certain considerations: (1) if you are a pilot, the FAA will consider the refusal as proof of a substance abuse problem, your certificate will be under fire; (2) if you are involved in an accident, the police will take blood instead; (3) if the police choose, they can get a warrant and take blood even if you are not in an accident; and (4) if you refuse there is an automatic suspension of your driving privileges - UNLESS you file a request for an administrative hearing within 10 days. This hearing is invaluable in many ways, and too many clients show up after the 10 day window and it is too late. But that is another topic. The short answer to your question is yes, you can refuse the test, but that seldom affects the officer's arrest decision.

Answer Applies to: Texas
Replied: 10/31/2011

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You can refuse the test. But, if the police believe that you are intoxicated, they can arrest you. And, you can lose your driver's license for more time for refusing than for taking and failing it.

Answer Applies to: Texas
Replied: 10/29/2011

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It's very complicated. They can't just arrest you for refusing, but they can use that as evidence for probable cause that you are intoxicated.

Answer Applies to: Texas
Replied: 10/27/2011

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