Should you or shouldn't you refuse to take the breathalyzer test? This is the question that a lot of drivers only have a few seconds to ponder while facing a police officer who is holding a breathalyzer in one hand and looking at them with suspicion. If you're on your way home after a couple of beers at dinner or a nightcap at someone's house, you may not feel drunk and you might not actually be impaired, but the thought of seeing those numbers come back too high on the breathalyzer may scare you.
While nothing can act as a substitute for the advice given by your own attorney, tailored to your specific situation, here are some things that you should consider before you blow:
The penalties for not blowing are severe, and that could be as bad as a conviction.
It pays to know the exact laws in your state, but you can generally expect that the response to your refusal to blow into the breathalyzer will be abrupt and severe. Implied consent laws now exist in all states and can give the refusal to blow severe consequences.
For example, in New York, the first time that you refuse to blow, you face an automatic 1 year suspension of your license, plus a fine of $500. Those are some heavy consequences when you aren't even sure that you'll fail the test!
The breathalyzer isn't the most accurate test available, and that could be useful.
There are a lot of known problems with breathalyzer tests. They have to be calibrated properly and well-maintained in order to retain any sort of accuracy. They have to be administered properly by someone who knows how to use one, and who can make sure that you're breathing out the air from the deep part of your lungs, not just mostly what's in your upper airways.
Breathalyzers also have a high rate of false positives because any one of a number of different factors can cause the unit to misread acetone, which occurs in the human body naturally, and ethanol, which is in alcoholic drinks. In addition, there are a number of ways that you can end up spiking the level of ethanol in your mouth, which then causes the breathalyzer to misread:
- you could be diabetic, diagnosed or undiagnosed, which causes you acetone levels to rise to detectable levels
- a low-carb diet also produces high acetone levels
- asthma inhalers, even those without ethanol, have been shown to produce falsely high results on breathalyzers
- if you work around solvents, cleaning supplies, or paint fumes, you could produce abnormally high results
- acid reflux can force alcohol back up your digestive tract, resulting in a false-positive for intoxication—so even a burp can throw off the test
- cough medicine and cough drops can contain enough alcohol to throw off a breathalyzer even though you're far from inebriated
In addition, even when accurately used without any complicating factors, a breathalyzer has a plus/minus error rate of .01%—which means that there is a full 20% margin of error on any given test. That can easily make the difference between being under or above the legal limit. In states that require 2 separate positive tests typically require the tests to be within .02% of each other. Mathematically, that works out to a possible 40% margin of error!
The blood test is more accurate, but that might not be an advantage.
In some states, you can ask to take a blood test instead, which is far more accurate in its analysis of someone's blood alcohol content (BAC) level. That would definitely be to your advantage if you haven't been drinking at all and are worried about a false-positive on the breathalyzer.
However, taking the blood test if you have had a drink or two could be problematic, simply because they are more reliable. It's not impossible to argue against their reliability, but it's significantly harder to do so than it is a breathalyzer.
For more information or to get advice tailored to your unique situation; discuss the issue with a DUI attorney near you.
