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Explore General Legal Issues

What Happens If You Refuse A Breath Test?

by Ralph Griffin

If you get pulled over for DUI, should you take the breath test? How will it affect your case? Here's what you should know.

Can You Use the Fifth Amendment?

The Fifth Amendment right to remain silent does not apply to breath tests. The right to remain silent is about answering questions. If the police officer asks you how much you had to drink, you can use your right to remain silent to not answer that question.

The breath test isn't answering questions. You're not giving any information. The police are just measuring something. Therefore, you can't use the Fifth Amendment to not take a breath test.

Can You Refuse the Breath Test at All?

You can refuse the breath test, and police usually won't force you to take it. However, this is not without consequence. When you get your driver's license, you sign an agreement to submit to the breath test if you're pulled over for DUI. Refusing to take the test usually means that your license will be automatically suspended.

For serious charges, such as an accident with injuries, the police may be able to force a breath or blood test. This will usually mean going to a judge to get a warrant. If they don't have a judge's order, the test is illegal and can't be used in court.

Can You Be Convicted of DUI Without a Breath Test?

You can be convicted of DUI without a breath test, but it can be harder for the prosecutor. The prosecution must prove that you were intoxicated beyond a reasonable doubt. They can use other evidence such as your driving, slurred speech, inability to walk properly, or an odor of alcohol.

If you are close to the legal limit, you may not show enough signs of intoxication to be convicted without a breath test. If you are well over the legal limit, the police may not have enough evidence to charge a more serious level of DUI.

Can the Prosecutor Use Your Refusal Against You?

The fact that you refused the test could be used as evidence against you. Remember that the test is not covered by your right to remain silent. So while the prosecution can't use silence under questioning against you, they can argue that your refusal to take the test was because you knew you were intoxicated.

To learn more about refusing a breath test, contact a local DUI attorney today.