This Blows! What Happens if You Refuse to Take a Breathalyzer Test?

Nothing can ruin your Friday night quicker than seeing blue lights in your rearview mirror on your way home. For your safety, as well as for the safety of other drivers on the road, you should never drive home if you are under the influence of alcohol. However, there may be some evenings in which you only consumed one or two drinks and you are not under the influence.

In Kentucky, the law presumes you are under the influence of alcohol if you have a blood-alcohol concentration (BAC) of 0.08 or higher. The average sized adult male can process one unit of alcohol every hour. Each unit of alcohol (one 12 ounce beer, one 5 ounce glass of wine, or 1.5 ounces of liquor) will raise the BAC of an average sized adult male by 0.02. This is not always the case, as various factors can affect any particular person’s BAC. For example, drinking on an empty stomach can raise your BAC much quicker. Women lack an enzyme that breaks alcohol down more quickly and are thus more susceptible to alcohol. The law presumes you are under the influence of alcohol when your BAC is 0.08 or higher because this is the stage in which many people experience a diminished ability to control their locomotive systems.

If you are pulled over on suspicion of driving under the influence, the police officer will ask you to perform various field sobriety tests. These can change depending on the officer administering the tests, but typical tests include: walking heel-to-toe in a straight line for a specified number of steps; raising one foot above the ground until the officer tells you to stop; reciting the alphabet from one random letter to another random letter without saying the entire alphabet; and many more. If the officer believes you are under the influence, he will ask you to blow into his Personal Breathalyzer Test (PBT). An officer’s PBT results are inadmissible in court because they are not scientifically accurate, but they can detect the presence of alcohol and the results can give the officer probable cause to arrest you. 

There are scientifically calibrated breathalyzer machines in every county jail. The results of these machines are admissible in court, unlike the officer’s PBT. However, the General Assembly has given the accused individual a statutory right to refuse the test. The officer is required to read a specific consent form prior to administering the test. This consent form informs the accused that they may submit or refuse to take the test, and that they have the right to consult this decision with an attorney for a brief period of time. An attorney will not be provided for you, but if you have contact information for an attorney you will be allowed to call them. Additionally, the officer must observe you for 20 minutes before administering the test to ensure you have not brought alcohol into your mouth from your stomach by belching or vomiting. Refusing to take the test will result in your license being immediately suspended when you are arraigned, double the minimum jail sentence if you are convicted, and the prosecutor can use your refusal as evidence of your intoxication at trial. Additionally, and perhaps the most severe penalty, is that your license could be suspended even if you are acquitted by a jury of your peers.

Refusing to take the test should be carefully considered in each case. On the one hand, refusing to take the test denies the prosecutor any scientific evidence of your intoxication. Considering that a prosecutor must prove you were intoxicated “beyond a reasonable doubt,” the denial of scientific evidence substantially weakens the Commonwealth’s case. However, you’ll risk a higher jail sentence if you decide later to plead guilty or the prosecutor is able to convict you with other evidence.

Kentucky has cracked down on drunken driving in recent years and a conviction for DUI can carry consequences for as many as 10 years. The best way to avoid these consequences is to not consume alcohol and drive. However, you should always be aware of your constitutional and statutory rights and be able to make an educated decision if you are accused of breaking the law. You may wish to put our contact information in your phone in the event you need an attorney’s advice before submitting to the test.

The attorneys at Barsotti & Manley, PLLC, are experience criminal defense attorneys and will fight for your rights. You can call us anytime, at (859) 429-3444.