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Our New Orleans DWI Attorney Discusses Refusing a DUI/DWI Breath Test

You see the flashing lights of a police car in your rearview mirror, and you pull over. The officer, who stopped you because he believes you were driving erratically, asks you if you’ve been drinking tonight. You know you’ve had a few, and might be over the legal limit. When the officer inevitably asks you to submit to a breath test to determine your blood alcohol content (BAC), one that could be used to charge and convict you for driving while intoxicated, you decide to refuse rather than take your chances. What happens next?

You Have Already Given Your “Implied Consent” to a Breath Test

The fact is that if you drive on a Louisiana road or highway, you have already given your “implied consent” to submit to blood, breath, or chemical screening to determine your BAC if you are arrested by an officer for DWI in New Orleans. That said, you can still withdraw that consent and refuse to submit to such testing, but there are significant consequences for doing so, including loss of your driving privileges and potential jail time. To find out more about the consequences, contact a skilled New Orleans DWI attorney right away if you’ve been arrested for DUI/DWI.

What is the Implied Consent Law in Louisiana?

You should also be aware that in Louisiana, as well as many other states, there is what is known as the implied consent law. In short, this law decrees that by getting behind the wheel, you agree that in the event that you are pulled over and an officer suspects you of drunk driving, you will agree to a sobriety test.

This means that if you then refuse to take a sobriety test, you will be arrested. If you refuse multiple tests in a row, you may be subject to additional fines and possible suspension of your license. Of course, getting charged with a DUI also carries fines and penalties.

Sometimes the police may also seek a warrant if you refuse a sobriety test. This warrant would then allow them to administer a blood test, with or without your consent. Essentially, the police officer faxes a letter to a judge saying that you’re drunk, and the judge faxes back a warrant.

This might seem alarming, but it’s more common than you might think, especially among state troopers. Jefferson Parish is often known for seeking warrants for blood tests.

Which Tests Have You Consented To?

There are several different tests and techniques officers use to determine a driver’s level of intoxication, and your implied consent to testing does not apply to some of these methods.

Specifically, you can refuse an officer’s request to submit to any field sobriety tests (FST) without any consequence or risk to your license. FSTs include such familiar evaluations as the “walk and turn” test, “one leg stand” test, and the Horizontal Gaze Nystagmus Test, where the officer shines a penlight or other stimulus into your eyes and instructs you to follow it to the left and to the right. These tests are often unreliable and if you fail them, the officer will likely have a video of the test that can be used as powerful evidence against you. If police ask you to participate in a field sobriety test, you should respectfully refuse. If you have any questions or concerns in this regard, do not hesitate to contact a New Orleans DWI attorney at Bloom Legal as soon as possible.

In addition to asking you to perform FSTs, the officer may ask you to submit to a preliminary alcohol screening (PAS) test. More commonly referred to as a breathalyzer test, the PAS test requires you to blow your breath into a device that calculates your possible blood alcohol level. However, the handheld breathalyzers used by police during traffic stops are notoriously unreliable and can produce false and inflated BAC readings that prosecutors will try to use as evidence of your intoxication.

Even though you have consented to BAC testing, you can refuse the roadside PAS test and instead request a blood or breathalyzer test at the police station. If you have been arrested for suspicion of DUI, we recommend that you do exactly that.

Is it in your Best Interest to Blow or Refuse a Breath Test?

Unfortunately, there’s no clean, unequivocal answer to this question. If you have been drinking and you get pulled over, there’s going to be trouble, plain and simple.

In many cases, it may be in your best interest not to blow. If you blow, you provide the police with definitive evidence that you were driving drunk. When your case is taken before a judge, there will be little legal wiggle room.

You are within your legal rights to refuse a field sobriety test. The Fifth Amendment protects individuals’ right to remain silent. You may refuse to submit information, whether verbal or otherwise, which may incriminate you. This covers everything from refusing to answer questions, to refusing a search of your vehicle or person, to refusing a sobriety test.

However, you should remain aware that refusing a search or acting non-cooperatively with a police officer may give them reason to suspect you of a crime, and can shift the tone and nature of the traffic stop.

Penalties for Refusal

If, however, you refuse to allow any BAC testing, whether at the traffic stop or at the police station, you will face automatic penalties for doing so.

Louisiana law requires that officers arresting a person for suspicion of DUI must read an “Implied Consent Warning” outlining the possible consequences of refusing to submit to a test. If you refuse after being read the warning, those consequences will become very real, very fast. Specifically:

  • Automatic license suspension. If this is your first refusal, your license will automatically be suspended for 180 days. You may be able to obtain a “hardship license” reinstating your driving privileges, but obtaining such a reinstatement is far from guaranteed. Additionally, if you are pulled over again for suspicion of DWI, subsequent refusals will likely result in extended license suspension with no chance of getting a hardship license.
  • Fines and jail time. Refusing BAC testing can itself be a crime if you have refused two or more times before, or if your suspected drunk driving caused a death or serious physical injury. Upon conviction, you could be subject to fines of up to $1,000 and up to six months in jail.

Bloom Legal: Let a New Orleans DWI Attorney Help

If you have been arrested and charged with DUI or DWI in New Orleans or elsewhere in Louisiana, the attorneys at Bloom Legal are ready to help you. Our goal is to get you out of trouble by letting you keep your driver’s license, insurance, and freedom. We are available 24/7 to offer you a free consultation to discuss your case. Please call us at 504-599-9997 or contact us online.


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