A chemical test determines the blood alcohol content (BAC) in a person’s system. Blood tests directly measure the amount of alcohol in a person’s bloodstream. Breath tests indirectly measure the amount of alcohol in a person’s bloodstream by analyzing the concentration of alcohol in the subject’s breath.
You must take a chemical test when you have been lawfully arrested for driving under the influence.
If you are at least 21 years old and not on DUI probation, you do not have a legal obligation to take either kind of chemical test before you have been arrested. This is merely a preliminary alcohol screening (PAS) and refusal to submit to this test cannot be used to prove guilt. However, unfavorable results can be used against you to provide cause for lawful arrest and prove your guilt at trial. Do not expect an arresting officer to present the PAS as something you can refuse. However, polite refusal is an option so long as you have not been lawfully arrested, are at least 21 years old, and not on DUI probation.
There is no need to tell an officer that you have been drinking, how much you have been drinking, or that you have been using any kind of drugs. Lying to the police is not advisable, but your 5th amendment right to remain silent includes the right to not volunteer illegal activities to an officer.
A PAS and an officer’s questions about your activities are both designed to illicit evidence to determine whether or not to arrest you. You have no legal obligation to submit to either.
Most of the time, submitting to the test is your best option. Refusal will most likely only harm you and bring about serious legal consequences if you are convicted. If the arrest is later deemed unlawful, the arrest will be thrown out even if you did have a chemical test that indicated you were intoxicated in some way.
Most of the time you will be able to request a specific type of test, however there are exceptions. This can include when an officer suspects drug use or feels that the breath test is not giving accurate results, or even when a test simply isn’t available at the time.
Refusing to retake a test or to take the specific test that the officer has instructed you to take can be considered refusal to take a chemical test and result in serious consequences. Remember, you are requesting a certain kind of test. You do not have the ability to demand a certain test.
There is a lot of room for debate here. Some argue that a blood test takes longer and allows more time for alcohol to leave your body. Others argue that the variability of a breath test gives a talented attorney more room to argue user error. The flip sides of these arguments are that more time could allow your BAC to rise and the variability of the breath test could potentially lead to a wrongful conviction based on the inaccurate data.
Generally, if you have taken any drugs, prescription or otherwise, a breath test is a better choice as it will not register the presence of anything other than alcohol. Having a prescription for a drug does not negate the effects of that drug when driving. A blood test is potentially beneficial because it allows your attorney to request an independent retest of the blood that may show different results than the initial police test.
Refusal to take a chemical test can add additional penalties to your DUI. This can include a longer license suspension, more time in county jail, and a longer DUI class. Refusal is not necessarily as simple as saying no. Refusing an officer’s first request for a chemical test after a lawful arrest, failure to choose a chemical test when asked to do so, or refusing to take a test until after consulting with an attorney can all be considered refusal.