Test Refusal

Definition: A driver who refuses chemical testing for intoxication, or who has a BAC of .08 or more is subject to the immediate suspension of the driver’s license and seizure of the automobile.

Executive Summary: Most states have implied consent laws regarding test refusal, which means that upon signing for the driver’s license, drivers have automatically agreed to testing or have agreed to submit evidence to law enforcement for the determination of sobriety. Motorists must obey such laws in the state(s) where they are stopped/arrested; not the state in which the license was issued.

More Detail: Most state laws require a driver to provide a breath and/or blood sample. Yet, even if the driver is required by law to submit to testing, the testing period may not occur until an hour or more after the initial arrest. This extensive time delay can prevent an accurate BAC reading at the time of the crash or offense, yielding a lower BAC level than when they were driving. To counteract this issue, some states have laws that presume that any test taken within three hours of driving reflect the BAC at the time of the driving.  This is a rebuttable presumption.  In order to avoid issues associated with test refusal, states could enact laws with stiff penalties to deter suspected impaired drivers from this practice.

Some jurisdictions have enacted a search warrant program to secure blood evidence in DUI cases when the suspect refusals the chemical test after the implied consent or expressed consent is given.  These “no refusal” programs are effective in securing chemical evidence during the DUI investigation.  With the ease of electronic search warrant processes, some jurisdictions have been successful in securing warrants from judges within 30 minutes.

Chemists and other experts can accurately calculate BAC as it existed at the time of arrest, for example, from a BAC taken later at a police station. Weight, sex, and time are used to calculate a rate of metabolism so that an expert can give a sound opinion, admissible in court, about a driver’s BAC at the time of arrest.  They use a mathematical process called “retrograde extrapolation” to calculate the BAC at the time of driving.

In cases dealing with repeat offenders, the recidivist often knows of the strategy of test refusal. Refusals of these tests can present a substantial obstacle in the prosecution of suspected impaired drivers because law enforcement is prevented from obtaining important evidence during the traffic stop. This loss of evidence may cost the state the chance of a conviction. Therefore, maintaining the ability to accurately assess the driver after being stopped is a vital component in a DUI case.

Sample Legal References: One statutory approach that appears to be effective in reducing test refusal was enacted by the Nebraska legislature. Nebraska Statute §60-6,197.03 provides for virtually identical penalties for either driving under the influence (DUI) or refusing chemical testing. Twelve other states have such laws.  A refusal conviction brings mandatory fines and license revocation/impoundment and enables the sentencing court to impose probation with conditions such as evaluation, alcohol education, treatment and other conditions related to preventing recidivism. Thus, there is little or no advantage in refusing. Indeed, a defendant may actually gain more possible defenses by taking a test and thus being able to litigate the myriad of issues that can arise with respect to a breath testing apparatus. The Nebraska refusal statute’s criminal penalties are in addition to separate administrative license revocation (ALR) sanctions, the combination of which the Nebraska appellate courts have found, do not raise constitutional double jeopardy or multiple punishment issues. See: Kenley v. Neth,271 Neb. 402, 409-411, 712 N.W.2d 251, 259 – 261(Neb., 2006).

A similar Minnesota law is currently before the United States Supreme Court is expected to rule on the legality of such a scheme once and for all.  See:Bernard vs. Minnesota 859 N.W.2d 762  (2015)

According to a National Conference of State Legislatures’ study, in Minnesota and Vermont, the penalties for a test refusal are also equal to or substantially similar to the penalties for an impaired driving conviction. In California and Vermont, prior impaired driving convictions enhance the criminal penalties for subsequent test refusals. The effect of laws that criminalize refusal, with the same penalties applicable to impaired driving, appears to be effective as Nebraska’s refusal rate is less than seven percent. However, their constitutionality is in question and will be decided by the U.S. Supreme Court this term.

Some states have enacted laws that permit the introduction of test refusals as evidence of guilt in an impaired driving case. See K.S.A. 8-1001 which specifically provides for the admissibility of the refusal of evidentiary breath tests at trial. See also Pennsylvania statute, 75 Pa.C.S.A. § 15471547(e).

Many appellate courts such as the Texas Court of Criminal Appeals held that the admission in a DUI prosecution of a defendant’s uncompelled refusal to submit to a breath test does not violate the state constitutional privilege against self-incrimination. 723 S.W.2d 696, 704-05 (Tex.Crim.App.1986). These rulings are generally based on the U.S. Supreme Court’s decision in South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983) upholding use at trial of defendant’s refusal to provide a blood sample for DUI testing where the defendant was not warned refusal could be used against him at trial as required by state statute Id. 563-64, 103 S.Ct. at 922.

Having penalties for refusal that are equal to an impaired driving conviction have been imposed in Canada since 1969 and in the European Union and Australia for many years.

In December 2015, the US Supreme Court granted certiorari in four cases involving implied consent laws. These four cases, Birchfield v. North Dakota, Danny v. North Dakota, Bernard, Steve M. v. North Dakota, and William R. v. Minnesota, will decide “[w]hether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.” The outcome will have a nationwide effect on law as it exists currently.


Suggested Audience: Enforcement, Prosecutors, Judges


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