Can You Refuse a Breath Test? The Supreme Court is About to Decide

supreme court buildingAsk people if you can refuse a breath test when you’ve been stopped for drunk driving, and you might hear contradictory answers:

  • Yes, it’s your constitutional right not to self-incriminate
  • No – if the police tell you to do it you must comply

The truth is sometimes closer to the second. Thirteen states have “no refusal” laws which impose automatic penalties on drivers who refuse to submit to a sobriety test – even if the officer does not have a warrant. So if you refuse to blow into a breathalyzer you could lose your license for a long time – usually a year – and pay a hefty fine.

The reason that you can face a punishment without a trial is something called implied consent: when you get your driver’s license, it is implied that you consent to a breath test when you are stopped for suspicion of drunk driving. If you refuse, the penalty is therefore justified.

Not everyone agrees that this is fair. Lawyers in North Dakota and Minnesota insist that compelling someone to take a breath test under pain of suspension is a “sweeping warrantless search.” The Fourth Amendment requires that an officer obtain a warrant before a search.

SCOTUS will soon decide if you can refuse him

So: is refusing a breath test a protected constitutional right? The ruling will have a massive effect on the DUI law enforcement scene. While in some areas the police have a judge “on tap” to serve warrants – some even park a judge at the DUI checkpoint for easy access – many jurisdictions rely on the no refusal provision. DUI fines can be a significant income source for some municipalities.

And not just money is at stake. In recent years states that don’t allow one to refuse a breath test have seen reductions in DUI recidivism. Mothers Against Drunk Driving (MADD) considers the “no refusal” measure a vital element in an anti-DUI strategy. If SCOTUS rules against the provision, then prosecutions will be slowed down markedly.

Whatever the Supreme Court decides, the rules of engagement in the battle against drunk driving are about to change.