What is Considered a DUI Refusal?

Getting pulled over for a DUI can be scary. Your heart races as the police lights flash behind you. You know you’ve had a few drinks, but you don’t feel drunk. When the officer approaches your window and asks you to take a breathalyzer test, you hesitate. Can you refuse the test? What happens if you do? Let’s break down what constitutes a DUI refusal, the consequences, and your options if you find yourself in this situation.

The Legal Definition of a Refusal

Legally, a DUI refusal means declining to submit to chemical testing when an officer has reasonable suspicion that you’re driving under the influence. Chemical tests include:

• Breath tests
• Blood tests
• Urine tests

You have the right to refuse any of these tests. However, simply remaining silent or passively resisting does not count as an outright refusal in most states. You must clearly and unambiguously decline the test through words or actions. For example:

• “I refuse the breath test”
• Physically resisting providing a blood sample
• Not providing enough breath or urine for analysis

Even if you initially consent to a test, changing your mind partway through counts as a refusal. Bottom line: anything short of fully cooperating with the officer’s request for chemical testing is legally considered a refusal.

Implied Consent Laws

Every state has some form of implied consent laws on the books. These laws assume that by driving on public roads, you automatically consent to submit to BAC testing if an officer pulls you over for suspicion of DUI. Refusing this “implied consent” results in automatic penalties, including:

• Driver’s license suspension – The length ranges from 3 months to over a year depending on your state and prior offenses.
• Revocation of vehicle registration – In some states, your car’s registration will be revoked for refusing a chemical test.
• Ignition interlock requirement – Most states require an ignition interlock device after a refusal. This breathalyzer connects to your vehicle’s ignition system and prevents it from starting if you have alcohol on your breath.

These administrative penalties are civil, not criminal. They apply regardless of whether you are ultimately convicted of a DUI. The suspension goes into effect quickly – in some states, the officer confiscates your license on the spot.

How Refusal Affects Your DUI Case

In addition to automatic license suspensions, a refusal can seriously hurt your DUI defense. Prosecutors can use your refusal against you in court in two key ways:

1. As evidence of your guilt – The logic is that an innocent person would consent to a breath test to prove they weren’t over the legal limit. So refusing implies you believe you would fail the test. Some states even explicitly allow prosecutors to tell the jury that refusal indicates guilt.
2. To enhance your charges – Many states impose harsher penalties for DUI if you refuse testing. For example, you may face higher fines, longer license suspension, and mandatory jail time.

Without chemical test results, the prosecution’s case relies more heavily on officer testimony about your impairment. But experienced DUI officers are trained to notice signs of intoxication and document field sobriety test performance. Their testimony can be very persuasive to a jury.

When Refusal May Be Your Best Option

Given the consequences, refusing testing is a risky legal strategy. There are some cases where it may help more than hurt your case:

• You’re close to the legal limit – Let’s say you had 2-3 drinks and blew slightly under a .08% BAC on a preliminary roadside breath test. The official station test may produce a higher reading that puts you over the limit. Refusing may prevent this incriminating chemical evidence.
• There are issues with the test’s validity – Were you unable to provide an adequate breath sample due to medical issues? Did the officer make mistakes in administering the test? A refusal may be wise if you can argue the results would have been unreliable or inadmissible anyway.
• You have prior DUIs – Multiple offenses bring harsher sentences. Not having a documented high BAC may help your case if pleading down to a lesser charge.

An experienced DUI lawyer can help assess if refusal is a smart legal move given the specifics of your case.

Can I Change My Mind?

In most states, you have the right to withdraw your initial refusal and agree to testing, provided the officer is still readily available to administer the test. However, some states have strict time limits. For example, Florida allows only 30 minutes to reconsider.

Don’t count on being able to change your mind. The officer may have already left the scene or finished paperwork processing your refusal. And if you do end up testing over the limit after initially refusing, it will look highly incriminating to a jury.

Should I Refuse Field Sobriety Tests?

Field sobriety tests (FSTs) are the roadside maneuvers officers have you perform to assess impairment. Common FSTs include:

• Walk and turn
• One leg stand
• Horizontal gaze nystagmus (following a moving object with your eyes)

You have the right to refuse FSTs without automatic penalties. However, officers can still legally compel you to undergo chemical BAC testing, even if you refuse the FSTs. And unlike chemical test refusal, FST refusal cannot be used against you as evidence of intoxication in court.

There are valid reasons someone may perform poorly on FSTs even when sober – injuries, inner ear problems, or nervousness. Unless you are highly confident in passing, politely declining to perform FSTs is generally advisable.

Can I Consult an Attorney Before Deciding?

You do not have the right to speak to a lawyer before deciding whether to consent to chemical testing. Officers are only required to inform you of your state’s implied consent law and the consequences of refusal.

However, once you have made the decision to refuse or consent, you can exercise your right to counsel. At that point, the officer must facilitate contacting your attorney if you request it. But you aren’t entitled to legal advice before making the testing decision.

What If I Wasn’t Driving?

Simply being in the driver’s seat with the keys does not necessarily mean you were “driving” or “in control” of the vehicle for DUI purposes. There are scenarios where refusing testing may be advisable even if you’re stone cold sober:

• You pulled over to sleep it off or wait for a ride
• You were parked and rummaging for something in the car
• A sober friend was driving but you switched seats before police arrived

If there is a valid dispute over whether you were actually driving, a refusal avoids creating chemical evidence that assumes you were operating the vehicle.

Can I Be Forced to Take a Test?

Police cannot physically force you to submit to chemical testing against your will. However, in some states they can get a warrant authorizing them to draw your blood if you refuse. Having a warrant makes the blood draw lawful even without your consent.

Officers don’t always bother getting a warrant, especially if the case seems weak. But if you are severely impaired, injured, or caused an accident, police are much more likely to pursue a warrant and involuntary blood draw.

Should I Refuse or Consent?

There is no one-size-fits-all answer. Before deciding, ask yourself:

• How impaired do I actually feel? Be honest with yourself.
• Do I have confidence in passing the chemical test?
• How strong is the officer’s evidence of my impairment?
• What are the refusal laws and penalties in my state?
• How will refusal impact my particular case?

While refusing has consequences, it isn’t necessarily the wrong choice. An experienced DUI lawyer can help weigh your options based on the unique circumstances.

The Bottom Line

A DUI refusal means clearly and unambiguously declining to submit to BAC testing requested by an officer. Refusal triggers serious penalties, hurts your defense, and makes prosecutors’ jobs easier. However, there are some cases where refusal may limit damning chemical evidence. Understanding your rights, the laws, and potential outcomes is key to making an informed decision.

If you refused testing or are considering it, don’t go it alone. Consult with a knowledgeable DUI attorney in your state to craft the strongest defense strategy.