TDNCLA: Can I Refuse a Brethalyzer Test?

June 14, 2013


I’m writing tis kqwestion from my caaaah.  My wife cheated on me with the PLUMBER and …I had to go wallow AWAY FROM ANY FAUCETS OTHER THAN MY EYES!!! Alos, I’ve sort of been pulled over by the popopopopo…And they want me to take a breath-a-lyzer, to alyze my breath for booooze.  They are coming now with the ting that looks like my azma inhaler.  Can I say no? Maybe I go to jail and meet friends who can get rid of my plumbing problem…..but no srsly I am drunk.  Heeeeeelp meeee.  Why is the car spinning?


Should’ve Smoked Instead.


First thing I’m going to do is ask you to immediately delete this email to me.  Did you do it? Is it gone? Are you sure? You have to press “OK” after you press delete.  Breaking your phone will NOT delete this email.

So look, you’re not really in a great situation.  You’ve already been pulled over and it doesn’t sound like all those years rubbing your tummy while patting your head is going to get you out of this one (though, I can see why you thought it was a good time investment).  But hope is not lost.  There are lots of different things that you can do to minimize the damage that is done to your driving and criminal record.

The question you are facing, to blow or not to blow, is an age old question that dates back to when someone discovered that you can measure alcohol in breath. Prior to that, you could probably talk your way out of a DUI charge by saying, in the Queen’s English, “But officer, I am a on my way to cure pneumonoultramicroscopicsilicovolcanokoniosis. Would you like me to spell that for you?”  Long gone are the days that you can smart-talk your way out of a drunk-driving violation.

You should know that you have every right to refuse a breathalyzer.  The problem is, you may not get any benefit from doing so.  Many states have penalties for refusing a breathalyzer—completely separate from the penalties for actually being drunk and driving—which range from fines, insurance charges, license suspension, and possibly even jail time (Alaska, Minnesota and Nebraska, I’m looking at you).  These will apply even if, in fact, you are not in the least bit drunk. And, it’s not as if refusing the breathalyzer means you’ll get off scot free from the DUI charge.  The police can collect plenty of other evidence to use against you–the smell of alcohol itself, failure of field sobriety tests, slurred speech and the fact that you have a video of yourself drinking and driving that you took because you thought it could make you a YouTube sensation or the next America’s Got Talent star.  Also evidence: the email you wrote to me asking advice since it isn’t privileged as I am not your lawyer and not actually giving you legal advice.

Of course, maybe losing your license isn’t that big a deal to you.  Maybe you have a bike that’s been neglected.  Maybe you want to start looking for prospective new wives on public transportation.  And the good news is that often license revocations don’t transfer to other states. Maybe you’re kind of sick of Kansas and you don’t really see a need to drive through there ever again.  In such a scenario, refusing the breathalyzer may be the wiser decision and save you from a reckless endangerment charge.


But if you do decide to blow, here are some tips for your situation:

  • Take a shot. The question of whether you were driving under the influence relates to how drunk you were when you were driving, not how drunk you were when you took the breathalyzer.  Maybe you step out of the car and down a bottle of liquor prior to taking the breathalyzer. Then you can argue that you weren’t drunk while driving.  Of course, you may still have to explain why you had a bottle of booze so handy. Also, like, there’s probably an open-container ban in your state so maybe nix this tip.
  • Hyperventilate.  Studies have shown that hyperventilating can lower your breathalyzer reading substantially. So SSI, now would be a good time to freak out.
  • Avoid Listerine.  I know what you’re thinking SSI: “Maybe if I use this handy mouthwash or binaca, that’ll mask the smell of alcohol on my breath.”  Nay, nein, nyet, Nixon.  Mouthwash is notoriously alcohol laden, and far from “fooling” the breath machines, mouthwash will likely overestimate the alcohol content in your blood.  Counterproductive beyond measure. In fact, short of chugging a lot of water, you’re best keeping things away from your mouth at this point. Put. Down. The. Beef. Jerky.
  • Don’t try anything cute.  Maybe you’re thinking, “How can the officer tell if I’m really blowing as hard as I can? I’ll just hold my breath … ”  In some states, a bad blow counts as a refusal to blow and can have the same legal effect.  Also, I know you’re feeling bold and clever, but don’t let your liquid courage give the officer a reason to lay another charge on you.  After all, remember that one of the hallmark benefits, err, drawbacks of alcohol is judgment impairment.  Now is not the time to think you’re smarter than the five-oh.
  • Call a lawyer. In some states, your refusal to take a breathalyzer can be used against you in court as evidence that you were actually drunk and were trying to hide it.  Somehow, the right against self-incrimination doesn’t apply to breathalyzers.  So how best to counteract the implication that you didn’t blow because you were guilty? Call your lawyer. Later, you can argue that the reason you didn’t take the test was because your lawyer advised you not to.  She told you the tests were unreliable, often overestimating the blood alcohol content of people with diabetes, people suffering from acid reflux, or if you’ve just vomited. All three applied to you. Having a reason other than the fact that you are guilty and you know it will help you down the line.

Anyway, SSI, sounds like it’s time for you to go face the music, but look on the bright side—you didn’t kill anyone!! (right???)


Luci Lawless

This Does Not Constitute Legal Advice does not constitute legal advice. For actual legal advice, please see a lawyer.