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Why would I refuse a breath test?

Here’s a scenario: You go to a bar and have a few drinks with your friends while you watch the big game. Later, you’re driving home. You feel confident you’re sober, but after an officer pulls you over and asks if you’ve been drinking, he asks you to take a breath test. Should you?

The truth is that you’re already in a bad position. Once the officer asks you to take the test, it’s likely he or she already plans to arrest you. Also, if you refuse the test, there are consequences. Refusal carries a one-year suspension of your driving privileges. But taking the test could be even worse. Here’s why.

Five reasons taking a breath test could be worse than refusing it

Missouri adheres to a policy of implied consent. This means that when you drive, the law demands you submit to a breath or other form of chemical test. Thus, if you find yourself faced with a breath test, you may very well find yourself trapped between the proverbial rock and hard place.

On the one hand, you face the suspension of your license for refusing the test. But on the other, you face having your license suspended anyway if you should fail. And you could face charges that carry much stiffer penalties. This leads us to the first consideration:

  • The penalties for a DWI outweigh those for refusing a chemical test. There’s no guarantee you’ll be charged or convicted if you take the test, but you run a greater risk of suffering those penalties if you do.
  • Breath tests are often inaccurate. You may very well be under the legal limit but suddenly register above it. This could be because breath tests are widely known to be of questionable quality, as the New York Times reported in late 2019. Programming errors and user errors can all play a part.
  • People don’t all process alcohol the same way. The law acts as though .08 BAC means the same thing from person to person and time to time. It draws a hard, clear line. But people’s bodies respond differently to alcohol. Weight and gender can make a difference, as can your meal or cigarette. The law aims to keep the roads safe from people who present a danger due to their alcohol use, but the hard number of .08 BAC is an imperfect measure.
  • A breath test score over the legal limit is hard to fight. It’s possible to challenge a breath test result of .08 BAC or higher, but it’s harder than challenging an officer’s subjective assessment. Despite their flaws, breath tests yield numbers that draw straight lines to the law. A BAC score of .08 or higher makes it much easier for prosecutors to win their conviction. Without that score, the prosecution needs to make a tougher case.
  • You can challenge the one-year suspension of your license. If you refuse a chemical test, the officer will take your license. But he or she will also issue you a 15-day temporary permit. You’ll also have the chance to contest the suspension or revocation of your license. If a court finds the officer lacked reasonable cause to demand the test, you should have your license reinstated.

In the end, you’re bound to face some stress if you must choose whether to refuse a breath test. But the law also says you have 20 minutes to consult with an attorney before the officer can even consider your decision a refusal. This may ultimately be the best response to the officer’s request: Ask to speak to an attorney.

Everyone has a motive

It may be helpful to remember that everyone has reasons for the things they do. Sometimes, those reasons may not make sense, but they exist. Everyone approaches situations from their own points of view, and when an officer asks you to take a breath test, what’s that officer’s motive?

Generally, officers use tests to get more evidence against you. Not to support you. If an officer asks you to take a breath test, that’s something worth remembering.

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Travis Noble is a graduate of the National College for DUI Defense at Harvard University, and he lectures at seminars nationwide on DWI/DUI topics. He is the lawyer whom other lawyers consult to defend their DWI clients. Most importantly, he has a track record of successfully defending some of the toughest DWI cases in Missouri and beyond.

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