If Pulled over for DUI Should You Take The Breathalyzer Test?

Posted by Michael Zarrella | May 08, 2011 | 0 Comments

As a DUI defense lawyer, one of the most common questions I receive is "If I get pulled over for DUI should I refuse the breathalyzer test?". The common thought is that if you are stopped for a DUI, do not take the breathalyzer test and the State will have a much more difficult job in convicting you.  But this is not necessarily the way to go. There are many important factors that you have to take into consideration before making the choice of whether to take the breathalyzer test.  It all depends on numerous factors such on how intoxicated a person is, can you afford a loss of license, do you have prior DUI convictions, how old are your prior DUI convictions, and will a criminal conviction affect your job or school.  To start our analysis lets first look at the penalties for refusal and DUI.

Penalties for First Time DUI Offender with no Breath Test or BAC between .10-.15%

Fined $100-$400
Suspended license for 3 Months to 1 Year
Community Service for 10-60 hours
Highway Safety Assessment ($500 fee)
DUI School and/or an alcohol treatment program
Criminal Conviction
Up to one year in jail(No Mandatory Jail)
SR-22 Insurance 3 Years

Rhode Island Breath Test Refusal Penalties For First Offense Breathalyzer Refusals

Fine $200-$500
Rhode Island Department of Health Fee $200
Suspended license for 6 Months to 1 Year
Community Service for 10-60 hours
Highway Safety Assessment ($500 fee)
DUI School and/or an alcohol treatment program
Civil Violation
SR-22 Insurance 3 Years

As you can see the penalties for both are very similar and the fine and assessments are virtually the same.  Furthermore, if convicted of either charge you will have to do community service for 10-60 hours, DUI School and/or an alcohol treatment program, as well as have to carry SR-22 Insurance for 3 Years.  The main difference between the two is that a DUI is a criminal conviction and a refusal is a civil penalty.  The other big difference is in the license suspension.  If you refuse to take a blood test or a Breathalyzer test and are convicted, your driver's license will be suspended automatically for at least six months. However, if you take the breath test and fail, the minimum suspension is only three months, assuming it is your first offense.  The problem arises in the standard of proof in the two cases. A refusal case is very difficult to win since the State needs only to prove that the arresting officer had reasonable suspicion to ask you to take a breath test. On the other hand, a DUI is a much more difficult case for the State to prove.  A defendant in a DUI case is afforded all the rights granted under our Constitution. The defendant enjoys the presumption of innocence, as well as the criminal standard of proof beyond a reasonable doubt.  The problem is if you fail a breath test you are indeed giving the State more evidence to prove the DUI.

So should you take the test?

The short answer is sometimes.  I believe that a first time offender who can't afford to lose his license may want to risk taking the breath test.  The reason for this are the following: first and foremost you may pass, and there will be no charges; second, there are many cases in which a defendant fails the breath test, but their DUI lawyer is able to get the test results suppressed.  If the result are suppressed, the chances of a legal victory increase dramatically.  In addition, many times the State may reduce the charges to a reckless driving if they feel they may have problems getting the breath test admitted.  My last three cases in which I had a client take and fail the breath test, I was still able to get my clients' charges reduced to a reckless driving.  Failing a test is not the end all and as a DUI defense attorney I often would rather fight a breath test than a breathalyzer refusal.  The State must jump though many hoops in order to have the test result admitted into evidence.  Therefore, the risk may be worth the reward.  In summary, if you take the breath test the chances of not losing your license increases, but the chances of get a criminal conviction also rises.  It is a risk you have to take in order to not lose your license and to have all the charges dismissed.  Even if you do lose, there is a good chance that your license suspension would be less then if you refused the breath test and plead to a refusal.

You should not take the breath test if the any of the following exist:

I would often advise people who have any of the following NOT to take the breath test.

1. A prior DUI (this may lead to mandatory jail)

2. Car accidents with injury to another (This may lead to a felony conviction and/or jail)

3. Employment or careers where you can not have a criminal record ( If you will lose your job because of a criminal record, you may not want to risk taking the breath test).

4. Very High Readings (Lets face it, if you are going to blow a very high reading that is 3 to 4 times the legal limit, you are opening yourself to much harsher penalties, therefore you may not want to take the breath test).

5. People that are likely to do it again (another words if you think you are going to drink and drive again don't take the test because you are setting yourself up for mandatory jail the next time).

Remember if you get pulled over for DUI, use the phone to call a DUI Attorney and he or she will be able to give advice based on the situation.

If you have further questions about DUI or criminal law go to my website at

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Michael Zarrella is one of Rhode Island's top DUI attorneys. If you have been charged with a DUI or any criminal matter, contact him today.