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Drunk Driving and Breathalyzer

Posted by John P. Rutkowski | May 01, 2018 | 0 Comments

There are many terms for drunk driving. Some states refer to it as Driving Under the Influence (DUI), some use the name Driving While Impaired/Driving While Intoxicated (DWI), and other states use Operating While Intoxicated (OWI). No matter what term your jurisdiction uses, any form of operating a motor vehicle while under the influence of alcohol or other mind-altering/impairing drugs is illegal and may have enormous consequences for those who are caught.

One of the sure ways for a police officer to determine whether a driver is impaired is by testing their blood alcohol content (BAC), and they do this using a breathalyzer after they pull over someone they suspect of driving under the influence. A breathalyzer is a device that uses the driver's breath to estimate their BAC. If the reading of the instrument returns with .08 or above result, then the driver is considered to be driving under the influence.

If you get pulled over after being suspected of driving under the influence, it's best to let the officer use their breathalyzer. Do not resist it because doing so may lead to the suspension of your driving license or even jail time. Although you are not under arrest, it's best to submit to the breathalyzer test because if you refuse, there are other pieces of evidence like a field sobriety test that can be used by the prosecutor to charge you with DUI/DWI/OWI. In some states, if you refuse to take the breathalyzer test, this can be used against you in a possible future trial.

You can face a lot of consequences for not submitting to a BAC test. The state can have your driving license suspended or revoked, impose steep fines, or even give you jail time. Since driving is considered to be a privilege and not a right, as a driver you have implicitly consented to a BAC test in exchange for your opportunity to drive, and by refusing to take the breathalyzer test, you are in essence surrendering your privilege to operate a vehicle.

In general, your state can have your driving license suspended for up to twelve months if you refuse to take the breathalyzer test. If you have a past DUI conviction and you refuse to take the test, the suspension of your license could be longer, and you could even go to jail.

Some states have imposed “no-refusal” DUI enforcement where a driver is served a warrant immediately and is therefore required by law to submit to a breathalyzer test. These warrants are called “electronic warrants” which police officers can obtain from a judge via their mobile devices. After you've been served with this warrant and you still refuse to take the test, you can be charged with grave contempt charges, or the police could forcefully take your blood for testing.

It is best to just submit to a breathalyzer test when you get stopped by a police officer. Instead of refusing the test, do it calmly and if you're found to have blood alcohol content of 0.08 or above, listen to the officer's instructions and talk to your lawyer right away.

Are you involved in a DUI case? Contact us at Hogan Injury for legal advice.

None of the content on is legal advice nor is it a replacement for advice from a certified lawyer. Please consult a legal professional for further information.

About the Author

John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-four years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as a prosecutor in Florida before going in to private practice.


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John P. Rutkowski, Attorney at Law, is focused on all aspects of Criminal Defense, State and Federal Courts, Post Conviction Relief, Criminal Appeals and Traffic Offenses. Contact me today for a free telephone consultation.