Should I refuse a breath test if pulled over for a DUI?

The question I am most frequently asked is this: should a person being investigated for DUI submit to the breath test? The answer to this question is, well, what you would expect from a lawyer: it all depends upon the facts of your particular case. Having made that disclaimer, I can give you some more specific guidance to this important question.

First, to answer this question, I have to know which breath test you are asking about. The preliminary breath test, which is typically performed on the roadside, should be taken in nearly every case. A positive test result in a preliminary breath test is almost always only evidence that you have consumed alcohol and not evidence of any specific alcohol content level. In contrast to a preliminary breath test, the state-administered breath test is usually performed at the police department, jail, or in a mobile BatMobile (a mobile breath testing trailer).

The ramifications of refusing the preliminary the breath test or the state-administered breath test are vastly different. Refusal of a preliminary breath test can serve as part of an officer's probable cause to arrest you for DUI, but no criminal charges will result merely from your refusal of a preliminary and no driver's license suspension will result from your refusal of a preliminary breath test. Generally, I recommend that clients submit to a preliminary breath test.

However, refusal to submit to a state-administered test of your blood, breath, or urine may result in at least a 12-month suspension of your driver’s license. The suspension which may occur as a result of a refusal of the state-administered test is a “hard” suspension with no limited driving privileges to and from work or school.

Generally speaking, I recommend that people that fall within the following categories refuse the state-administered test of their blood, breath, or urine:

· People involved in accidents resulting in a fatality or serious injury;

· People charged with DUI and DUI – Child Endangerment;

· People under the age of 21;

· People facing a second (or greater) DUI within the last 5 years (as measured from the date of arrest to the date of arrest).

Generally speaking, if you are facing your first DUI charge within the last 5 years or your lifetime, I recommend that you submit to the state-administered test of your blood, breath, or urine.

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