By John Cutler on March 18th, 2025 in DUI
When faced with the question, “Should I take the breath test?” during a DUI stop, it’s essential to understand the potential consequences of your decision. Let’s break down the penalties and procedures involved in both refusing to take the breath test and taking and failing it (meaning the results are .o8 or higher). (Note: we talk about refusing to take a breath test in this post, but the same advice applies to any evidentiary test offered, whether it is a breath, blood or urine test).
Penalties for Refusing the Breath Test
If you refuse to take the breath test, you have 7 days to request a court hearing. If you do not request a hearing, or you do not prevail at the hearing, you will face a one-year absolute suspension of your driver’s license (no work or restricted driving permit allowed) and a $250 civil fine if this is your first refusal in the last ten years.
Additionally, you will need to install an ignition interlock device on all vehicles you operate for one year following the end of your suspension. If you have a prior refusal within the last ten years, the penalties increase to a two-year absolute suspension (no work or restricted driving permit allowed), a $250 fine, and the same interlock device requirement.
Penalties for Taking and Failing the Breath Test
If you take the breath test and fail it, (meaning the results are 0.08 or higher), you have 7 days to request an administrative hearing. If you do not request a hearing or do not prevail at the hearing, and this is your first failure in the last five years, your driver’s license will be suspended for 90 days. The first 30 days are absolute, followed by a 60-day period during which you may request a restrictive driving permit.
For a second failure within five years, the suspension extends to one-year absolute suspension with no restricting permit allowed. Further, you will be required to install an ignition interlock device on all vehicles you operate for one year following the end of your suspension.
Breath Test Changes Over the Years
In the past, refusing the breath test often resulted in a one-or two-year absolute suspension of your driver’s license, but law enforcement rarely pushed ahead to get a search warrant for your blood and therefore lost a key piece of evidence for their DUI case against you. This was mainly because of the time it took to get a search warrant. However, modern procedures and technology have changed significantly. Police cars now have computers with internet access, and judges are available to issue search warrants quickly and 24 hours a day. This means that even if you refuse the breath test, officers can obtain a warrant to draw your blood more quickly and efficiently, ensuring they still get the evidence needed for court and you still face the potential penalties for refusing.
So today, refusing the breath test can lead to multiple penalties. The officer will likely get a warrant for a blood draw and get the results they want. You will likely be charged with refusal, and if the blood test results show a blood alcohol level of 0.08 or higher or the presence of impairing drugs, you likely will be served with a Notice of Suspension and face an administrative driver’s license suspension mentioned above for failing the test. This combination of penalties is what I call the “trifecta” – prosecution gets their evidence for the DUI case against you, you get charged with refusal, and you face the penalties for failing the evidentiary test list above.
You Have Limited Time to Request a Hearing
If you are given a “Notice of Suspension” for refusing or you failed the breath test or other evidentiary test, be sure to request the hearing within the 7-day deadline. This is a strict deadline. Also prevailing or winning at these hearings is very difficult, and it would be important to hire an experienced DUI attorney to assist you.
Also, I have noted that some of the driver’s license suspensions listed above are absolute, no work or restrictive permit allowed. There is one exception, if you are accepted to problem solving court and have served at least 45 days of an absolute suspension, you may be eligible for a restricted driving permit for non-commercial driving privileges for certain driving, like for work, school, and medical purposes.
Questions about the DUI Breath Test? Call Cutler Law
So, what should you do? Unless you are a high stakes gambler and are willing to risk living without a driver’s license for a significant amount of time, I would advise taking the breath test and avoiding the trifecta penalties.
By taking the breath test you can minimize some of the penalties you will face. It will also allow an experienced DUI attorney to review the case for any errors in the breath or other evidentiary test procedures. This approach allows you to build a defense against DUI and failing the breath test administrative penalties.
If you have any questions or need further clarification, feel free to reach out. The Cutler Law Office, P.A. have the experience and training needed to help you navigate a DUI Charge. See Attorney John E. Cutler’s bio for a list of his credentials.
