Refusing a breathalyzer

The decision is made at the roadside, in a few minutes, by somebody who has just been arrested and has nobody to ask. It is worth knowing beforehand what the statute actually does, because the common version of the answer — refuse and they have no evidence — is wrong in every state on this page.

What implied consent actually is

Every state conditions the license on agreeing in advance to be tested. California's section 23612 puts it plainly: a person who drives a motor vehicle is “deemed to have given his or her consent” to chemical testing of blood or breath for the purpose of determining alcohol content, if lawfully arrested for an impaired-driving offense. The consent is a condition of the license, given by driving, long before the night in question.

Refusing is therefore not refusing a request. It is withdrawing a consent the statute treats as already given, and the penalty is administrative: the license goes, on the state's own motion, whether or not anybody is ever convicted of anything. That is the mechanism, and it is why the refusal suspension survives an acquittal.

The statutes also require the officer to say so out loud. California's section 23612(a)(1)(D) sets out what the driver must be told, including the exact suspension and revocation periods, and section 23612(a)(4) requires the officer to add that the driver has no right to have an attorney present before deciding, and that a refusal may be used against them in court. Georgia's section 40-5-67.1(b) prescribes the text of the notice word for word.

What Birchfield changed, and what it did not

In Birchfield v. North Dakota, 579 U.S. 438 (2016), the Supreme Court drew a line between the two tests. The syllabus states the holding in one sentence: “The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.”

The reasoning turns on how intrusive each is. A breath test does not pierce the skin, leaves no biological sample in the government's possession and yields only a BAC reading. A blood test takes part of the body and leaves a sample from which more can be extracted later. So a breath test rides along with the arrest; a blood draw needs a warrant or a genuine exigency.

The practical consequence was not what drivers hoped. States that had criminalised refusing a blood test had to stop; states kept criminal penalties for refusing a breath test; and everywhere else the answer was to make warrants faster. An on-call magistrate reachable by phone at two in the morning turns a refusal into a delay rather than an obstacle, and that is now standard practice in much of the country.

What refusing costs, by state

The table compares the two suspensions side by side. In every row, refusing costs more license time than failing the test does.

Two rows deserve reading twice.

Florida. Section 316.1939 makes refusal a criminal offense in its own right — a second-degree misdemeanor for a first refusal, and a first-degree misdemeanor for a second or subsequent one. Subsection (3) then says the disposition of that prosecution does not affect the administrative suspension at all. Two consequences, neither depending on the other, on top of whatever the DUI charge does.

Colorado. Refusing puts you inside the statutory definition of a “persistent drunk driver” at section 42-1-102(68.5)(a)(IV). That is not a rhetorical label; it is a defined term that carries a two-year interlock restriction under section 42-2-132.5(3). The same definition catches a reading of 0.15 or more, so it is not reserved for people with a record.

The case they still have

The assumption behind most refusals is that the number is the case. It is not, in any state on this site, and the statutes are drafted to make sure of it.

• Texas defines intoxication two ways in Penal Code section 49.01(2), and the word between them is or: not having the normal use of mental or physical faculties, or an alcohol concentration of 0.08 or more.
• Arizona sets its threshold at impairment “to the slightest degree” in section 28-1381(A)(1), which is a lower bar than most states use and needs no sample.
• Georgia charges DUI less safe under section 40-6-391(a)(1) alongside the per se count, from the same stop.
• California has subdivision (a) of section 23152, which contains no figure at all.
• Florida has “normal faculties impaired” in section 316.193(1)(a).
• Colorado has DWAI, which by definition has no BAC floor, and a permissible inference of impairment above 0.05.

What the refusal removes is the cleanest piece of the prosecution's evidence. What it adds is a longer suspension, an evidentiary point the state gets to argue about, and in two of these states a second consequence with its own name. Whether that trade is worth making is a question about the specific facts of a specific stop, which is exactly the question nobody can answer at the roadside.

If you already refused

The clock that matters started at the refusal and it is short. The request for a hearing goes to a licensing agency, not to a court, and no judge will make it for you: seven days in Colorado, ten in California and Florida, fifteen in Texas, thirty in Georgia and Arizona, with Georgia also requiring a filing fee. The state pages carry each deadline with its section number.

The hearing is worth requesting even where the suspension looks unwinnable, for a reason that has nothing to do with the suspension. It is frequently the only proceeding in which the arresting officer can be put under oath, on a record, months before any criminal trial. In Florida the subpoena power goes further than that: section 322.2615(11) says that if a subpoenaed arresting officer or breath technician fails to appear, the department shall invalidate the suspension.

Common questions