Do You Have to Consent to a Breathalyzer During a DUI Stop?

Many of our clients find themselves in the position of having to decide whether or not they can refuse a breathalyzer test from a police officer. Often the officer will not tell the client that they DO have a right to refuse the test.

Why would you want to refuse? If the police have scientific evidence that your Blood Alcohol Content (BAC) was greater than the legal limit at the time you were pulled over or shortly thereafter it makes a defense attorney’s job at trial much more difficult. It is far easier for the police to prove a client was intoxicated beyond a reasonable doubt when they have “scientific proof” backing it up.

Alabama Law has a specific code provision dealing with this.

Section 32-5-192 — Implied consent; when tests administered; suspension of license or permit to drive, etc., for refusal to submit to test.

(a) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 90 days; provided if such person objects to a blood test, the law enforcement agency shall designate that one of the other aforesaid tests be administered.

Now, that’s a lot to take in. Basically what the law says is that in exchange for having the privilege of driving on Alabama roadways you give your automatic consent to submit to a blood or breath test related to an arrest for DUI.

If you do not submit to the test your license will be suspended for 90 days.

There are options the client can purse. For example by hiring an experienced DUI attorney the client can file suit to have a stay of the suspension during the pendency of DUI action. Often times the Director of Public Safety, who decides when and how long to suspend licenses, will be willing to work with an attorney to minimize the suspension or even possibly waive it altogether.

If you’re ever pulled over and suspected of DUI just remember that you CAN refuse to take the breathalyzer or any sobriety test for that matter. If you do refuse to take the blood or breath test your license can and most often times will be suspended for 90 days.