Can You Change Your Mind After First Refusing To Take A Breath Test?

Interviewer: If you refuse a breath test, do they read you the admonition that you will lose your license for 18 months if you do not take the breath test? Do they do that before you even test; or only after you have said no to the test?

Court: They go through a very specific procedure to request a breath test. It is written down on their DUI report form. They are pretty much supposed to read verbatim what it says on this report form.

So first they say you are under arrest and they read you your Miranda rights. Then they request that you take a breath test. They say, “I’d like to give you a chemical test.” Then they mark down which type of a test they want to give you.

Usually with a DUI, it will be a breath test. At that point, if you say okay, then they just give you the test and you go on from there. After you refuse, they read you the admonition. They do not read you the admonition until you refuse.

Interviewer: What happens after they read you the admonition? Can you change your mind and then take a test?

Court: Yes, you can change your mind. If you refuse the first time and then they read you the admonition, you can then change your mind there.

Interviewer: Do you only get one shot to change your mind?

Court: It depends how stingy the officer is going to be. You may say no, and then he reads you the admonition and you say no again. But then you think about it and five minutes later you say, “You know what, I am sorry. I do want to take the breath test.”

It depends on the officer, I suppose. I would imagine that most reasonable officers are going to be okay with that. They will go ahead and give you the breath test, even though you refused a couple of times.

A lot of times, the officer wants to give the breath test because it is just easier. There is an even worse consequence- than suspension and the ignition interlock device- that you get if you refuse. Many times, if you refuse the breath test, they will just request a warrant to take your blood.

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At that point, you still had to take the chemical test. On top of taking the chemical test, you are stuck with this huge license suspension. For that reason, a lot of times it is not worth it to refuse the breath test no matter what.

Most of the time, the officer will be able to get a warrant to get blood drawn instead of a breath test, if you refuse. The issue is it takes a long time, as they have to call a judge and fill out paperwork.

Generally, they just do not want to have to do that because it takes a long time. So if you were to refuse a couple of times and then change your mind, most of the time they are probably going to be okay with just letting you take the breath test. Again, it is easier for everybody.

Interviewer: Do you have a choice of tests?  Can you choose a blood test over a breath test or urine test?

Court: No, you are not allowed to choose. The officer can request that you take a blood test, a breath test or a urine test. However, the officer decides which one. If you are arrested for a DUI, 95 % of the time it is going to be a breath test.

They might give you a urine test or a blood test instead, if you were suspected of a DUI drug like marijuana or something like marijuana that won’t show up on a breath test.

But most of the time, if they think it is a drinking DUI, they are going to give you the breathalyzer. This is because it is quicker, easier and cheaper. Also, there is a lot less red tape.

Interviewer: Are they allowed to do a breathalyzer and then request a blood test? Do they only get one test?

Court: I believe they can always ask you to do as many tests as they want. It is just like if you were to get your car searched. If they ask you and you consent, then they can do it because you told them it is okay.

If you take a breath test and then the officer later decides he wants to do a blood test, it is not a refusal if you say no. Then again, they usually can get a warrant.

The officer can do the one test. You might even be able to do the one test a couple of times. Suppose the first time the breath test does not work out the right way. It gets an insufficient reading or something like that. Then they can go ahead and give the breath test again.

They are not going to be able to sit and make you take five different tests just because you passed the first one they gave you.

Interviewer: Have you ever seen that happen?

Court: It is pretty rare. If anybody had that happen to them when they had a DUI, I suggest you contact a lawyer.

If you have a situation where the police officer did something crazy- like made you take a breath test and then a blood test after the breath test was okay, or maybe take all three tests- you definitely want to get a really good lawyer for some help. However, it is definitely pretty rare.

Most of the time, they are going to give you the breath test. Suppose you blow a really low number that they are not expecting you to blow, such as a .02. Even then, they are still not going to give you another test. They will just go on. They might still charge you, but they are not going to give you another chemical test.

By Court Koehler

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