If you have been stopped for driving under the influence of alcohol (DUI) a police officer may ask you to submit to a preliminary breathalyzer test. If you have not been arrested for DUI you have the right to refuse the breathalyzer test. Consider, however, a refusal will not guarantee you will not eventually be arrested.
What is a breathalyzer test?
A breathalyzer is a machine used to estimate the blood alcohol content (BAC) of a driver’s breath. Although the term breathalyzer was originally the brand name of the machine manufactured by Smith and Wesson, later National Draeger, it is now considered the generic term for this machine. Other common machines used by police to test your breath include the Intoxilyzer, Intoximeter, Alcotest, Alcosensor and Datamaster.
If an officer asks the driver to take a breathalyzer test prior to a DUI arrest the officer is generally asking the driver to give a breath sample for their hand-held electrochemical fuel cell-based instrument. This machine is used by officers in the field and commonly called PBT (preliminary breath test) or PAS (preliminary alcohol screening).
The breathalyzer test gives the officer their first bit of objective evidence that the driver may be intoxicated. If the driver refuses the breathalyzer test the driver may be asked to provide other subjective proof by completing field sobriety exercises.
What happens if I refuse the breathalyzer test?
So what happens if you refuse the preliminary breathalyzer test prior to a DUI arrest? If you refuse the preliminary breathalyzer test the police have several options. The police may decide to let you go, they may ask you to complete the field sobriety test, or they may simply arrest you, take you into custody, and ask you to take a chemical test of your blood, breath or urine.
Evidence used to make a DUI arrest
When will the officer make a DUI arrest? When they have sufficient evidence you are intoxicated. Evidence which may indicate you’re intoxicated can include erratic driving, weaving, stop and starting, driving too slowly and running red lights. Other physical evidence can include odor of alcohol on the breath, bloodshot eyes, thick or slurred speech, a flushed face, and falling down. Finally, if you have made any type of incriminating statements about your condition this information can also be used against you. Refusing a breathalyzer may also be interpreted as an incriminating statement.
If the police have gathered enough other physical evidence they may not need you to perform a field sobriety test or take the breathalyzer test to arrest you for drunk driving. Consider, however, some of the evidence outlined above is subjective, and the police would prefer to have objective evidence about your physical impairment.
What’s the bottom line? Whether or not you are arrested for drunk driving depends less on whether you submit to the preliminary breathalyzer test, and more about how much other evidence the officer has that you are intoxicated. Additionally, if you are arrested for DUI and you are asked to provide a breath or blood sample after the DUI arrest, refusing this test will result in an automatic license suspension, even if you are not convicted for DUI.
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