Submit to a DUI Test or Refuse?

If stopped on suspicion of drunk driving, is it better to submit to a DUI test or refuse? It is a good question. Obviously the results of a DUI/DWI test can be used as evidence against you, so it is important to know what is best – submit or refuse?

First, you need to know if you have have the right to refuse a DUI test.

You may have noticed that finding a straightforward answer – yes or no – about whether you must submit to a DUI test or have the right to refuse is not easy. This article aims to make the situation clear.

Your right to refuse a DUI test depends on:

• The type of DUI test you are asked to take.
• It also depends (to a lesser degree), on which state you live in.

The following information applies to most states, with exceptions noted in Montana (re PAS tests).

However, DUI/DWI laws are subject to change - you are best advised to double check on the current situation in your state.

Field Sobriety Tests (FSTs)

When stopped on suspicion of DUI, officers may ask you to take a field sobriety test (FST). Conducted by the roadside, an FST involves drivers performing a series of “standardized” physical maneuvers known to be difficult when intoxicated. The purpose of these tests is to obtain/confirm probable cause for an arrest.

• FSTs are 100% voluntary – you have the right to refuse to submit to field sobriety tests
• There are no penalties for refusing to take a field sobriety test.
• There are good reasons to refuse this type of DUI test, including the fact that it provides officers with probable cause for a DUI arrest.

Preliminary Alcohol Screening (PAS) tests

While at the roadside, you may be asked to blow into a portable breath analyzer which measures blood alcohol content (BAC). Breath tests conducted at the roadside before an arrest are known as “Preliminary Alcohol Screening (PAS) tests“. Like the field sobriety test, a roadside breath test is conducted to obtain/confirm probable cause for a DUI/DWI arrest.

• PAS tests are 100% voluntary – If you are over 21 and not on parole, you have the right to refuse to submit to these tests (except in MONTANA*)
• There are no penalties for refusing a roadside breath test (except in MONTANA*).
• There are good reasons to refuse this type of DUI test, including the fact that it provides officers with probable cause for a DUI arrest.

(*Montana has extended its “implied consent” law to include PAS tests, which means you cannot refuse a PAS test in Montana without incurring penalties.)

Chemical Blood Alcohol Content (BAC) tests

If arrested for DWI and/or DUI you will be taken to a police station (or detention or medical center) and asked to provide a breath, blood or (less often) urine sample for chemical BAC analysis.

Chemical BAC tests are covered by “implied consent” laws. All US states have implied consent laws. Under these laws, the act of applying for and obtaining a driver’s license implied your consent to submit to a chemical BAC test if lawfully arrested for DUI/DWI. This means that:

• You may refuse a BAC test when arrested for DWI / DUI but
• There are severe and automatic penalties for refusing a chemical BAC test, including lengthy and automatic suspension of your driver’s license.
• DUI lawyers advise that you comply with a BAC test to avoid these penalties and because failing the test does not mean that conviction is inevitable.

HOWEVER, this category of DUI test must be conducted lawfully. For example, in most (but not all) states you must first be lawfully arrested before being requested to take a chemical BAC test. (See Chemical BAC tests for more details.)

The above information applies to private drivers aged over 21 and not on parole. DUI laws differ for other categories of drivers.

Copyright © 2010 Caroline Mackenzie