During most police stops on suspicion for DUI / OWI, the officer will request a breath sample. What happens if a defendant refuses?
There are two different breath samples which the officer may request. The first is the preliminary breath test or “PBT” or field test. This is the small box which officers carry with them in the field.
The PBT is not fully accurate. For an OWI, it is used only to help officers determine if they have probable cause to make an arrest. The results will not be used in Court as evidence of intoxication. (They can be used for a public intoxication charge, though).
A refusal on the PBT is not a “refusal” in regard to any additional penalties which may fall on the defendant regarding their driver’s license. Refusing the PBT only denies the officer an additional piece of evidence prior to making an arrest. If a PBT is given and the results indicate intoxication, an arrest will almost certainly occur. If an officer suspects intoxication and the PBT is refused, an arrest will likely occur anyway. The important test is not the PBT, but the breath test given at the police station.
At the police station a second breath test can be requested. This can be called the “Intoxilyzer” or the “Breathalyzer.” This device is much larger, connected to a computer and much more accurate. A refusal of this test can have serious consequences for a defendant, especially regarding their license.
While requesting the Breathalyzer, the officer must read the implied consent laws to the defendant. The implied consent laws will give the defendant a general idea of the consequences of taking the test and failing, or refusing to take the test.
After a quick review of the probable penalties, it is rarely a good idea to refuse the Breathalyzer for a first offense OWI.
Obviously, if the results indicate no intoxication and the officer no longer feels the defendant is intoxicated and does not file a complaint, then there would be no license restrictions.
If the test is administered and the defendant fails, and it is their first offense, their license will be revoked for a period of 180 days. And depending on the indicated BAC, the defendant may have to wait a period of 30 days prior to receiving a temporary restricted license. If the defendant blows less than 0.10, but more than 0.08, there is no waiting period for the temporary restricted license.
For a refusal on a first offense, the defendant’s license must be revoked for a period of one year, and no temporary license can be received for 90 days.
(One exception to the above situation is if a personal injury occurred due to an accident in which the driver was involved. Then their license can be revoked for one year.)
Therefore, if you are facing the decision “to blow or not to blow” on a first offense OWI, my advice in general is that you should blow. Certainly there are other variables which can be involved, but in most situations taking the test will get your license back to you more quickly.