What to Do if You are Pulled Over for DUI

Find out if you can lawfully refuse the breathalyzer.

Adam Freedman
June 19, 2011


Today’s topic: DUI and the Breathalyzer test.

But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

SPONSORED LINK: Adam Hunt is a DUI Defense Attorney in Ohio. He is caring, experienced and he may help you to protect your driver's license, avoid a criminal record, or reduce or eliminate jail time. 

What to Do if You Are Pulled Over for DUI

An anonymous listener informs me that he was “recently pulled over and charged with a DUI because the officer saw me swerve into his lane.” Mr. Anonymous admits that he had been drinking beer, but then very helpfully explains:

But I was texting my girlfriend that I was coming home and wasn’t watching the road. But also my vehicle pulls to the left.

Oh, well, now that clears things up. Why would the police stop somebody like that? Shouldn’t they give him a medal and throw a parade in his honor?

 Is it Illegal to Drink and Text While Driving?

Let’s establish some basic points at the outset. First, don’t drink and drive -- ever. It’s illegal, it’s stupid, and frankly, it’s tacky. Not your sort of thing at all. Second, texting is no excuse for bad driving! In fact, 14 states (including Alaska, California, and New Jersey) already prohibit texting while driving, and recent federal legislation may well create a nationwide ban on texting while driving in the near future. And third, don’t drink and text while driving, not even to send nice messages to your girlfriend. 

14 states (including Alaska, California, and New Jersey) already prohibit texting while driving, and recent federal legislation may well create a nationwide ban on texting while driving in the near future.


To continue with our story, the police did arrest Mr. Anonymous, but apparently he had to take the breathalyzer test four times. Which leads to the question: do you have to take a breathalyzer test when the police ask you to? And if so, do you have to sit through multiple tests?

Can You Refuse a Breathalyzer Test?

Contrary to some urban myths out there, you have no Constitutional right to refuse to take a breathalyzer test. States across the USA have adopted so-called “implied consent” laws. That means that every time you get behind the wheel of a car, the law assumes that you have agreed to submit to a chemical test of breath, blood, urine, or saliva, for the purpose of determining your blood alcohol level.

Under these laws, if a police officer has reasonable grounds to believe that you are driving under the influence, your refusal to submit to a blood alcohol test can result in the suspension or revocation of your license. In some states, refusal to submit to a test is a crime in itself, and can even lead to jail time. The fact that you refused to take a breathalyzer can also be used against you at the trial of your drunk driving charge.

Are Mandatory Breathalyzer Tests Unconstitutional?

Over the years, people have argued that implied consent laws violate the Constitution-- either because such laws are an “unreasonable search and seizure” under the Fourth Amendment or because they violate the right against self-incrimination under the Fifth Amendment. Nifty arguments, really, but the courts don’t agree. So if you were planning on fighting that DUI conviction all the way up to the Supreme Court, think again. You’re probably better off memorizing the bus routes in your area.

Can You Demand a Breath Test Over a Blood Test?

Although drivers must submit to some sort of chemical test, some states at least give you a choice among the various types of test: breath, blood, or saliva. Generally speaking, the state cannot force you to undergo a blood test if you object, for example, because you are afraid of needles. But you’ll still have to undergo one of the other tests.

Many states require a period of observation -- typically 15 minutes -- before administering a breathalyzer test. In some states, the driver has the right to insist on a witness being present at the test. Because drunk driving is a very serious charge, you should avail yourself of any procedural safeguards offered by your state.

Are Police Allowed to Give You Multiple Breathalyzers?

But can the police make you sit through multiple breath tests? The answer is: it depends on why the police are repeating the test. Normally, the only reason to repeat the test is because of a technical error in the testing.   The fact is, these devices are rather delicate and a number of things can interfere with the results, including body piercings through the tongue, lips, or cheek. Or so I’m told.


In any event, the police are generally permitted to repeat the test in order to overcome such technical difficulties, although in some states, they may be required to repeat the 15-minute observation period each time they repeat the test. If, on the other hand, the police kept repeating the test simply because they didn’t like the results they got the first three times, that would be not be legitimate. Unfortunately Mr. Anonymous does not elaborate on why the police administered the test four times to him. Maybe they just enjoyed his company.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.  I want to mention a Quick and Dirty audiobook that will help you stand out in the tough job market we’ve been facing over the past twelve months.  With more competition for fewer openings, effective networking and strong interviewing skills are essential to landing a job. In The Public Speakers Guide to Ace Your Interview:  6 Steps to Get the Job You Want, Lisa B. Marshall shows you how to get in the door and make a powerful first impression that will get you hired.  The Public Speakers Guide to Ace Your Interview is available on iTunes and Audible.com for $5.95.

You can send questions and comments to legal@quickanddirtytips.com or call them in to the voicemail line at 206-202-4LAW.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

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