New Program Takes the Benefits out of Breathalyzer Refusal in DUI Cases


Breathalyzer test refusals have long been a thorn in the side of DUI prosecutors across the country. Although refusal itself carries penalties-in some states even criminal penalties-it is sometimes advantageous for a driver to refuse the test. In particular, in some states repeat offenders regularly avoid harsher penalties by refusing to submit to breathalyzer tests .

While the refusal itself is admissible as evidence in many states, lack of breathalyzer or BAC data leaves an important hole in the prosecution's case, and makes it impossible to file charges under the harsher statutes some states have enacted for drivers with especially high BACs. A skilled DUI attorney, knowing that the state lacks critical evidence, can often win an acquittal at trial.

A pilot program underway in nine South Carolina counties may put an end to the benefits of breathalyzer refusal once and for all. In most areas, when a driver refuses the breathalyzer test, that's the end of the story. He can still be charged with driving under the influence, and still faces penalties associated with the refusal, but no further effort is made to collect BAC data.

Under the pilot program, officers don't stop their investigation with the refusal. Instead, they go to a judge or magistrate and request a warrant for a blood sample. This allows law enforcement to obtain valid blood alcohol content evidence even in the face of a refusal.

Under this system, the possible benefits of refusing the breathalyzer quickly drop away. Drivers who refuse the test may still face penalties for refusal, but will not avoid BAC evidence. In fact, since blood test results are generally considered more reliable, the evidence obtained through a warrant for blood testing is generally offers the fewer options for challenging the validity of the test.

In theory, the process would be more expensive and time consuming for law enforcement, but as drivers become aware that the benefits of refusal are being eliminated, and that they may actually be solidifying the evidence against them, refusals are expected to decline.

Prosecutors in Pitt County, South Carolina, who joined the pilot program last year, have seen that theory bear out. In addition, prosecutors say that with the blood test results in hand, they're seeing fewer DUI trials-DUI defendants who know that the state has blood test data have proven more willing to plead guilty.

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