Implied Consent and Breathalyzer Refusal-What Every Driver Needs to Know
Implied consent laws are state statutes that require consent to chemical testing (blood alcohol content, breathalyzer, and/or urine tests for alcohol content) as a condition of operating a motor vehicle in public areas within the state.
Implied consent laws in 49 states authorize or require the suspension of a driver's license for refusing a breathalyzer or blood test. Many drivers who know that they're beyond the legal limit make the decision to refuse the test and accept the license suspension. Their hope is that without the breathalyzer or blood alcohol content test, the state will be unable to prove the more serious charge of driving under the influence.
According to the most recent data collected by the National Highway Traffic Safety Administration, the rate of refusal nationwide was about 25%, with one state's refusal rate at 85%. Since those statistics were compiled in 2002, several states have revised or enacted laws to provide for stricter penalties for blood alcohol content test and/or breathalyzer refusal.
As of January 2006, nineteen states have additional civil or criminal penalties for blood alcohol content test or breathalyzer refusal. These states aim to make the cost of a refusal high enough to force compliance with breathalyzer or blood alcohol content test requirements. The penalties include fines, insurance surcharges, suspension or revocation of vehicle registration, jail time, and enhanced penalties for drivers who refused the breathalyzer or blood alcohol test and were convicted of DUI.
Alaska, Minnesota and Nebraska implied consent statutes provide for jail time for first offense refusals. In California and Vermont, drivers who refuse the chemical test can be sentenced to jail terms if they've previously been convicted of DUI. In Vermont, the sentence can be as long as two years.
Under certain circumstances, fines for refusals reach as high as $10,000—and that's not including court costs and increased insurance rates. In New Jersey, there's a $3,000 insurance surcharge for a first offense refusal, and that number increases with subsequent offenses.
Both New Jersey and Rhode Island require participation in an alcohol treatment program for blood or breathalyzer test refusal.
If you refused a breathalyzer or blood alcohol content test and thought that you were making it more difficult for the state to convict you of a DUI, you may have been correct. But drivers can be and are convicted of driving under the influence after chemical test refusals all the time. Other evidence such as a smell of alcohol observed by the arresting officer, erratic driving, failure of field sobriety tests, the officer's observations of your speech and demeanor, witness testimony, or the presence of open alcohol or empty alcohol containers in your vehicle can be used against you in court.
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In addition, even if you're acquitted of DUI, you may be facing severe penalties for the chemical test refusal itself. If you've been charged with DUI and refused a chemical test, or if you've been charged with a chemical test refusal, talk to a DUI lawyer in your state. You need to know the potential penalties and possible defenses before you appear in court.