What Tests Can You Refuse To Take And What Are The Penalties?

Interviewer: You said the preliminary breath test is not admissible in court, so I am guessing it can be refused without penalty. What about the Intoxilyzer? Can that be refused, and does it make a difference if it is in the police car versus at a stable location?

Court: It does not make a difference where the test is, whether they do it right there at the site or whether they have to take you to the jail to do it. The penalty will be the same.

You can refuse to answer any questions an officer asks you, other than basically to identify yourself. That includes the ability to refuse the field sobriety test and the portable breath test. A lot of people do not know that.

However, when it comes to the actual Intoxilyzer, the difference at that point is you will have been arrested. They cannot give you the Intoxilyzer until after you have been arrested, because it is thought of as an unreasonable seizure under the Fourth Amendment.

It takes a while, as you have to blow into this machine. So, again, they won’t give you that until after they have actually arrested you.

That means there are some administrative penalties through the Driver License Division that come into play if you refuse. You can refuse. The police cannot make you take the breath test if you do not want to. However, if you do refuse, you are going to face some pretty serious penalties.

The first one is: Instead of having an automatic license suspension that lasts 120 days, it will last 18 months. That is a really long time and obviously will throw a huge wrench into almost anybody’s lifestyle.

Another thing that is really bad is that on your first refusal, you will be classified by the Driver License Division as an Interlock Restricted Driver. That means you will have to install in your car an interlock ignition device.

It is one of those things that you see in a movie, where you have to blow into the machine. It will not allow you to start the car if you have any alcohol at all on your breath.

They will require you to have the device in your car for three years, and the biggest problem with it is the expense. It might cost a couple hundred dollars to install. Then you are going to have a monthly maintenance fee which can be $75 to $100. Again, you will have that for three years.

Interviewer: So after an 18-month license suspension, then you have three years as an Interlock Restricted Driver?

Court: Well, three years would run along with the suspension.

Interviewer: It is concurrent.

Court: Yes, it is a full three years starting right away, even though you are technically not driving for that first 18 month period. You will be an Interlock Restricted Driver even though you do not have a license at that point.

By Court Koehler

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