Refusing a Breathalyzer Test

Many people think that taking a Breathalyzer test to show their blood alcohol content level is low is the way to go when stopped for a suspected DUI. Not so, says DUI attorney Claiborne Ferguson, THE Memphis DUI lawyer. His practice, the Claiborne Ferguson Law Firm in Memphis, Tennessee, is devoted to DUI defense and capital murder cases. Both require a vast knowledge of science and law, which is why he has extensive training in both areas.

Here’s the scenario: A cop stops you because he thinks you are driving under the influence. The cop then sticks a tube in your mouth and asks you to blow. But, you refuse. What happens next?

In that state of Tennessee, when you are given a driver’s license, you also give “consent” to submit to a breath alcohol content (BAC) test, should the need arise. This is what is called the Implied Consent law. If the officer has probable cause to believe that you are under the influence, he can request that you submit to a breath or chemical test to determine the content of the alcohol or drugs in your system.

Refusal to Submit

Your refusal to submit to the test will eventually lead to the revocation of your driver’s license. In some states this revocation is automatic; other states require a judge to hold a hearing to determine if you in fact refused, or if there was probable cause for the police stopping you.

If your license is revoked in Tennessee, it is revoked for one year. Other states have much shorter periods, such as 90 days. Some states such as Florida can actually revoke your license for your lifetime.

The state of Tennessee, however, will not force you to give a blood or breath sample. You can refuse. Some states, on the other hand, will forcibly draw blood, if there is a vehicular homicide, for example.

Breathalyzer vs Blood Sample

Using a Breathalyzer, however, is much easier than giving a blood sample. The Breathalyzer is in the car, the officer is trained to do it, and it gives immediate results. You do not have to wait for the lab to test anything, which is what happens with a blood sample. So a Breathalyzer is both quicker and simpler.

While a blood test is much more accurate, it’s also more time-consuming and costly. But while most jurisdictions do not allow you to pick the test you take, the officer decides whether it is a Breathalyzer, a blood draw or other form of testing the level of alcohol in your blood, such as a urine sample.

Always Refuse

As a DUI attorney, I always tell people to refuse a Breathalyzer test. The testing is not accurate enough to trust, even if it is a blood test, and frankly, why are you going to help them convict you? If you fail, they will take away your license for a year, in Tennessee anyway. If you refuse, they will take away your license for a year but you will not get convicted. So why go with the conviction?

And even if you pass the BAC test, you can still be charged and convicted of DUI. The BAC is just one of the ways they can get a conviction for DUI. The other is just to testify you were intoxicated and under the influence of alcohol or other substances the BAC does not test for. So just because you pass the BAC does not mean you are going home.