Refusing a breathalyzer

The decision is made at the roadside, in a few minutes, by somebody who has just been arrested and has nobody to ask. It is worth knowing beforehand what the statute actually does, because the common version of the answer — refuse and they have no evidence — is wrong in every state on this page.

What implied consent actually is

Every state on this page conditions the license on agreeing in advance to be tested. California's section 23612 puts it plainly: a person who drives a motor vehicle is “deemed to have given his or her consent” to chemical testing of blood or breath for the purpose of determining alcohol content, if lawfully arrested for an impaired-driving offense. The consent is a condition of the license, given by driving, long before the night in question.

Refusing is therefore not refusing a request. It is withdrawing a consent the statute treats as already given, and the first penalty is administrative: the license goes, on the state's own motion, whether or not anybody is ever convicted of anything. That is the mechanism, and it is why the refusal suspension does not wait for a conviction. Texas adds a rule of its own: under Transportation Code section 724.048(c), if a charge from the same arrest ends in an acquittal the suspension may not be imposed, and one already imposed is rescinded.

The statutes also require the officer to say so out loud. California's section 23612(a)(1)(D) sets out what the driver must be told, including the exact suspension and revocation periods, and section 23612(a)(4) requires the officer to add that the driver has no right to have an attorney present before deciding, and that a refusal may be used against them in court. South Carolina's section 56-5-2950(B) requires the same courtroom warning, and Texas's section 724.015(a)(1) requires it orally and in writing. Florida's section 316.1932(1)(a) requires the officer to tell the driver that refusing a breath test is a misdemeanor. Georgia's section 40-5-67.1(b) prescribes the text of the notice word for word.

What Birchfield changed, and what it did not

In Birchfield v. North Dakota, 579 U.S. 438 (2016), the Supreme Court drew a line between the two tests. The syllabus states the holding in one sentence: “The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.”

The reasoning turns on how intrusive each is. A breath test does not pierce the skin, leaves no biological sample in the government's possession and yields only a BAC reading. A blood test takes part of the body and leaves a sample from which more can be extracted later. So a breath test rides along with the arrest; a blood draw needs a warrant or a genuine exigency.

The practical consequence was not what drivers hoped. A state cannot make it a crime to refuse a warrantless blood test, but it can make it a crime to refuse a breath test, and the Court upheld Minnesota's prosecution of Bernard on exactly that footing. Minnesota's statute reads the way the decision draws the line: section 169A.20, subdivision 2 makes it a crime to refuse a breath test, and to refuse a blood or urine test only where a search warrant requires it. Washington's evidence rule follows the same split. The Court also said that nothing in its decision casts doubt on implied-consent laws that impose civil penalties and evidentiary consequences on drivers who refuse — which is the license suspension in every row of the table below.

What refusing costs, by state

The table sets the refusal suspension beside the one each state imposes without a refusal. Wherever that comparison row is a suspension for the test result itself, refusing costs more, or in Minnesota at twice the limit the same one-year minimum. Georgia's comparison row is the suspension after a conviction, the period the Georgia page carries, and it is the same twelve months as the refusal. Virginia's seven days fall on a refusal and a reading alike; the refusal then adds a year.

Four rows deserve reading twice.

Florida. Section 316.1939 makes refusing a breath or urine test a criminal offense in its own right — a second-degree misdemeanor for a first refusal, and a first-degree misdemeanor for a second or subsequent one. Subsection (3) then says the disposition of that prosecution does not affect the administrative suspension at all. Two consequences, neither depending on the other, on top of whatever the DUI charge does.

Minnesota. Refusal alone is third-degree DWI, a gross misdemeanor under section 169A.26, so a driver who refuses and is never shown to be over any limit can still be convicted of a DWI offense. The license side runs separately: at least a year under section 171.178, subdivision 3, and the refusal is admissible at the impaired-driving trial as well.

Virginia. A first refusal of a breath test is a civil offense, not a crime, but it carries a one-year suspension under section 18.2-268.3(A)(1), in addition to the seven-day administrative suspension under section 46.2-391.2. A breath-test refusal within ten years of a prior refusal or DUI conviction is a Class 1 misdemeanor with a three-year suspension, under subsection (A)(2). Refusing a blood test stays civil under subsection (B), with the same one-year and three-year periods.

Colorado. Refusing puts you inside the statutory definition of a “persistent drunk driver” at section 42-1-102(68.5)(a)(IV). That is not a rhetorical label; it is a defined term that carries a two-year interlock restriction under section 42-2-132.5(3). The same definition catches a reading of 0.15 or more, so it is not reserved for people with a record.

Can the refusal be used against you in court?

Separately from the license, the question at trial is whether the jury hears that you refused. Here is what the statutes read for this page say, state by state.

• Arizona — A.R.S. § 28-1388(D). Evidence of refusal is admissible in any civil or criminal action, whether or not a sample was later collected under a search warrant.
• California — Cal. Veh. Code § 23612(a)(4). The warning itself says it: before the choice is made the officer must tell the driver that a refusal may be used against them in a court of law, and that there is no right to have an attorney present before deciding.
• Colorado — C.R.S. § 42-4-1301(6)(d), (6)(i)(III). Refusing the evidential test is admissible at a DUI or DWAI trial, and the statute adds that the driver may not claim the privilege against self-incrimination over it. The roadside screening device is treated differently: under subsection (6)(i)(III) neither its result nor a refusal of it may be used in court, except at a hearing outside the jury's presence on whether the officer had probable cause.
• Florida — Fla. Stat. § 316.1932(1)(a), (1)(c). A refusal of a breath, urine or blood test is admissible in any criminal proceeding.
• Minnesota — Minn. Stat. § 169A.45, subd. 3. Evidence of the refusal is admissible in a prosecution for driving while impaired, on top of the refusal being a crime of its own.
• South Carolina — S.C. Code § 56-5-2950(B). The advisement the driver must be given says that the refusal may be used against them in court.
• Washington — RCW 46.61.517. A breath-test refusal is admissible at a later criminal trial. A blood-test refusal is admissible only when a search warrant, or an exception to the warrant requirement, authorized the seizure.
• Texas — Tex. Transp. Code §§ 724.015(a)(1), 724.061. A refusal of breath or blood, whether express or an intentional failure to give the specimen, may be introduced into evidence at the trial, and the officer must say so beforehand, orally and in writing.
• Virginia — Va. Code § 18.2-268.10(B), (C). The opposite rule. The failure to give a blood or breath sample “is not evidence” and the Commonwealth may not comment on it at trial, except in rebuttal. A finding of unreasonable refusal can come in, on either side's motion, only to explain why there is no test result, and then it is not evidence of guilt.

Georgia is not in this list. Its evidence provision was not re-read for this page, and the table above covers its license consequences only.

The case they still have

The assumption behind most refusals is that the number is the case. It is not, in any state on this site, and the statutes are drafted to make sure of it.

• Texas defines intoxication two ways in Penal Code section 49.01(2), and the word between them is or: not having the normal use of mental or physical faculties, or an alcohol concentration of 0.08 or more.
• Arizona sets its threshold at impairment “to the slightest degree” in section 28-1381(A)(1), which needs no sample.
• Georgia has DUI less safe in section 40-6-391(a)(1), which needs no reading.
• California has subdivision (a) of section 23152, which contains no figure at all.
• Florida makes it enough that the driver's “normal faculties are impaired” in section 316.193(1)(a).
• Colorado defines DWAI in section 42-4-1301(1)(g) as alcohol or drugs affecting the driver “to the slightest degree”, with no figure in it. A reading above 0.05 and below 0.08 also allows a permissible inference of impairment under subsection (6)(a)(II).
• Washington makes it an offense to drive “under the influence of or affected by” liquor, cannabis or any drug in RCW 46.61.502(1)(c), with no figure in the clause.
• Minnesota lists “under the influence of alcohol” first in section 169A.20, subdivision 1, ahead of the 0.08 clause.
• South Carolina builds its offense in section 56-5-2930(A) on faculties “materially and appreciably impaired”.
• Virginia has clause (ii) of section 18.2-266, “under the influence of alcohol”, separate from the 0.08 clause in (i).

What the refusal removes is the cleanest piece of the prosecution's evidence. What it adds is a longer suspension, in most of these states an evidentiary point the state gets to argue about, and in Florida, Minnesota, Virginia and Colorado a second consequence with its own name. Whether that trade is worth making is a question about the specific facts of a specific stop, which is exactly the question nobody can answer at the roadside.

If you already refused

The clock that matters started with the suspension notice, usually handed over at the arrest, and it is short. Seven days in Colorado and Washington, ten in California and Florida, fifteen in Texas, thirty in Arizona, Georgia and South Carolina. Georgia charges a $150 filing fee to ask, and Washington a $375 one. Everywhere on that list the request goes to an administrative agency rather than to a criminal court, and no judge will make it for you.

Two states work differently. In Minnesota the deadline that matters is 60 days to petition the district court for judicial review, under section 169A.53, subdivision 2. In Virginia the administrative suspension can be taken, while it runs, to the general district court where the arrest was made, which must hear it as quickly as an appeal on bail under section 46.2-391.2(C). The state pages carry each deadline with its section number.

The hearing is worth requesting even where the suspension looks unwinnable, for a reason that has nothing to do with the suspension. It is a proceeding in which the arresting officer can be put under oath and on a record, separate from the criminal case. In Florida the subpoena power goes further than that: section 322.2615(11) says that if a subpoenaed arresting officer or breath technician fails to appear, the department shall invalidate the suspension.

Common questions