Can you Refuse a Breathalyzer Test if You’re Pulled Over for a Suspected DUI?
Being pulled over on suspicion of driving under the influence (DUI) can be extremely stressful. For many people, this may be their first and only encounter with police as a suspect. You may have questions and doubts about what is happening, and whether what police are telling you is in fact the truth. Salt Lake City DUI defense lawyer Darwin Overson of Overson Law will explain some of the information you need to know about Utah’s breathalyzer test rules, and the penalties for refusing a breath test.
Is it Illegal to Refuse a Breath Test in Utah?
In any state, police can pull you over if they suspect you of drunk driving under § 41-6a-502 or another traffic violation. When doing so, they may investigate you for DUI if they have some reasonable suspicion that you are driving drunk. Police may ask you if you’ve had anything to drink, they may smell alcohol on your breath, and they may perform field sobriety tests to check your coordination, etc. One other tool they frequently use is breathalyzer tests.
In some states, breathalyzer results are not used in court as evidence. Those states require blood tests, or improved chemical breath tests. However, in Utah, the portable breath test kits – commonly known as “breathalyzers” – can often be used as evidence against you. Because of this, Utah’s laws on refusing breath tests are very strict.
In Utah, it is an independent crime to refuse a breathalyzer test. For this crime to take effect, you must already be under arrest. If you have not been arrested, police have no right to order you to take a breath test without a warrant. The justification for this law is Utah’s “implied consent” law. Under Utah Code § 41-6a-520, by driving in the State of Utah, you are “considered to have given … consent to a chemical test or tests of [your] breath, blood, urine, or oral fluids for the purpose of determining” intoxicated driving. This means that, according to this rule, you have no right to refuse a breath test because you already consented to it. This reasoning is obviously flawed, but is the law.
Before you can face any penalties for refusing a breath test, police must warn you about the penalties. This gives you much of the information you need to make an informed decision. Before administering any breath tests, police must warn you of the potential license suspension, driving probation, and ignition interlock penalties associated with a DUI breath test refusal. If they warn you, and you still refuse, you could face the following penalties:
- Immediately losing your license;
- Facing 5 or 10 years of driving probation, where it will be illegal to drive with any detectable amount of alcohol in your system; and
- A required three-year period where you must drive with an “ignition interlock,” which will not allow your car to start until it accepts a clean breath test.
These penalties are separate from any DUI penalty, and take effect merely by your refusal, not by a later DUI conviction.
Can I Refuse a Breathalyzer in Utah?
However, there are situations where you can refuse a breath test. The Supreme Court of the United States in Birchfield v. North Dakota (2016) held that it is legal to perform a breath test during an arrest, but that a blood test is too intrusive. When police arrest you for a crime, they are allowed to search you (including your pockets and bags). This could yield evidence of another crime. Along with this search, police may perform a breathalyzer test. This fits with Utah’s policy, where a breathalyzer can only be used after an arrest. However, it is unclear how this case affects the remainder of Utah’s implied consent laws.
Regardless, this case does not cover pre-arrest refusal. Since this case and Utah’s implied consent law do not empower police to perform breath tests before arresting you, you can refuse a breath test before you are arrested. Police may offer a chance to prove you are sober by allowing you to blow into a breathalyzer before ever being arrested. If you are indeed sober, this could clear things up quickly. However, because you can still be arrested for DUI even if you are below the “legal limit,” you should not accept a breath test until legally required to do so.
Salt Lake City DUI Defense Lawyer
Unfortunately, Utah’s DUI laws do not allow you to confer with a lawyer, a doctor, or any other person before making breath test decisions. This means you should gather as much information about your rights and responsibilities before you are ever pulled over for a suspected DUI. Call Salt Lake City criminal defense attorney Darwin Overson today for any legal advice you need on DUI or breath test refusals. If you were already arrested and charged with DUI, Darwin may be able to help fight your case, challenge breath test results, and challenge policing practices on your behalf. For a free consultation, call (801) 733-1308 today.