Should You Take a Breathalyzer Test at a Traffic Stop?

When you are pulled over in a traffic stop by a police officer, you may wonder if you should take a breathalyzer test or if you should refuse the test. This is a tricky question that depends on your feelings about the consequences of refusal.

Implied Consent Law

For many years, Oklahoma has had an implied consent law for refusing a BAC (blood alcohol concentration) test such as a breathalyzer or blood test. If you are driving a vehicle on public roads or if you are in actual physical control of such a vehicle, then you impliedly give consent to take a sobriety test if pulled over.

You do not have the right to a lawyer before you decide whether to take or refuse a test. If you refuse it, the officer can make you take one if he or she has a warrant or has probable cause to believe that you injured someone while driving intoxicated. Refusal also comes with penalties: your driver’s license will be suspended and your refusal could be used against you in court.

Oklahoma’s Attempt to Criminalize BAC Test Refusal

In 2017, the state attempted to change the DUI laws to make refusing a breathalyzer or blood test a misdemeanor. Criminalizing BAC test refusal is not unconstitutional – the Supreme Court considered this issue in Birchfield v. North Dakota, 579 U.S. __ (2016). It found that BAC tests were justified under the “search incident to arrest” exception to the warrant requirement.

However, Oklahoma’s law that included the BAC test refusal provision had other constitutionality issues. It was struck down in December 2017. So for now, Oklahoma law still provides for implied consent to BAC testing and no criminal penalties for refusal.

How Do You Decide Whether to Refuse a Test?

Now that you know the law, you may still be conflicted. Should you refuse a test on principle, because you think the implied consent law is intrusive? Or should you take a test no matter what in the hopes that you will pass? The answer to these questions is up to you. However, if you do get pulled over, chances are that the police officer will come up with some reason to claim you were driving erratically or illegally, justifying your arrest for some crime even if you blow clean. Further, if you take the test believing you will blow clean but actually come in over 0.08 BAC, you are in trouble. As a result, refusing the test may be a better option for some.

Interested in challenging BAC test results or need help after a test refusal? Clint Patterson, Esq., of Patterson Law Firm, a former Tulsa prosecutor now using his trial experience and expert-level knowledge of DUI science to defend drivers, assesses his clients’ best options for defenses. To schedule a case evaluation, visit Patterson Law Firm online or call Clint’s office at (918) 550-9175.