A common question I get when someone comes to me to represent them for a DUI is whether they should have taken or refused the breathalyzer test. The answer is complicated because there are significant penalties for refusing a test. You have a 270 day suspension of your driver's license for a first refusal and two year suspension for a second refusal unless you accept the ignition interlock for one year. You also face enhanced penalties increasing the maximum jail sentence from one year to 14 months. A refusal will lead to a one year CDL suspension for truck drivers. A refusal can also lead to a harsher sentence or conditions of probation by the judge.

Still, there may be valid reasons to refuse a test under the right circumstances. When you take the test, a result of .08 or above creates an inference that you are under the influence of alcohol. Unless your attorney can keep the test result out of evidence, you are almost certainly going to be convicted. On the other hand, if you refuse the test, the State will need to prove through other evidence that you are under the influence or are impaired. This increases the likelihood that you will be offered a deal to proceed on the lesser offense of driving while impaired.

If you did not have anything to drink, take the breathalyzer test. You will blow a 0.0. There will be no administrative consequences to your driver's license. I cannot tell you how many people refuse the test and tell me they did not have anything to drink.

If you only had one or two beers, take the test. You may fall below .08 avoiding the MVA hearing and the interlock. If you are between .08 and .14, the judge can grant you a restructed license for work, school, and alcohol treatment at a MVA hearing. You may be able to avoid the interlock altogether.

On the other hand, if you have gotten really drunk and know that the result will be .15 or above, you may want to refuse the test. You are not eligible for a restricted license (other than the interlock) if you are .15 or above. A high BAC will only help the State and could cause a harsher sentence if it is really high.

These decisions are difficult to make in the presence of the police officer and your breathalyzer result will be dependent upon your gender, weight, metabolism, how much you had to eat, and other factors. Hopefully, you never end up in this situation. If you do, these are some things to consider.