Man with bottle of alcohol driving car, and drunk driver showing refuse gesture to policeman with breathalyzer. Can you refuse a breathalyzer

Can You Refuse a Breathalyzer in Minnesota?

Motorists arrested for allegedly driving while impaired might wonder, “Can you refuse a breathalyzer?” In Minnesota, the implied consent law requires a person licensed to drive, control, or operate a vehicle to agree to a chemical test to check for alcohol or other intoxicants in that person’s body. Refusing to submit to a breathalyzer or another chemical test is a crime, often charged as a gross misdemeanor.

Man with bottle of alcohol driving car, and drunk driver showing refuse gesture to policeman with breathalyzer. Can you refuse a breathalyzer

You have a right to speak with a DWI lawyer before submitting to a breathalyzer. The arresting officer must give you adequate time to do so. You cannot, however, use this right to avoid the test or create unreasonable delays. Generally, 20 to 30 minutes are enough to consult a lawyer before submitting to the test.

What Are Your Rights When It Comes to Refusing a Breathalyzer Test?

You have a right to speak with a DWI lawyer before taking a breathalyzer test. The officer in charge must read the implied consent advisory to you before administering the test. The advisory states that you have consented to the testing by getting a driver’s license, refusing the test is a criminal offense, and you have the right to talk to a lawyer before undertaking the test.

Implied Consent Law

According to Minnesota implied consent law, drivers obtain driving privileges in return for implicitly agreeing to a blood alcohol concentration (BAC) test. Simply put, refusing a breathalyzer may result in driving privileges suspension and revocation.

An officer must have probable cause before subjecting a driver to a breathalyzer test. Probable cause exists in any of the following situations:

  • The driver declined to submit to a preliminary breath test (PBT)
  •  A PBT shows the driver had a BAC of .08% or higher
  • The driver got into an accident resulting in injury, death, or property damage
  • The officer legally arrests the driver for drunk driving

Legal Obligations and Consequences Associated With the Implied Consent Law

Like other states, Minnesota treats driving as a privilege. As such, it can suspend or cancel your driver’s license, impose hefty fines, or slap you with a prison sentence for refusing a breathalyzer or other alcohol concentration tests.

The Consequences of Refusing a Breathalyzer Test in Minnesota

Refusing a breathalyzer test in Minnesota carries criminal and administrative penalties and personal consequences. A first DWI involving refusing a breath test is a gross misdemeanor. A conviction of this offense can lead to up to a one-year jail time, $3,000 in fines, or both.

A second DWI involving refusing a breath test is also a gross misdemeanor, but more serious than the first one. It can lead to vehicle forfeiture in addition to jail time and fines.

You may lose your driver’s license for one to six years for a breath test refusal at the police station or hospital. Your DWI history will determine how long this administrative penalty will last.

Test refusal attracts a lengthier driver’s license revocation period than a test failure. A first breathalyzer test refusal results in a 12-month revocation, while a first DWI breath test failure with BAC below .16 leads to a 90-day revocation. A second test refusal carries a two-year revocation period, while a test failure with below .16% BAC for a second DWI attracts a one-year revocation.

A personal consequence that can arise from a breath test refusal is an increase in auto insurance premiums. In such situations, your insurer might assume that test refusal implies guilt and raise your premiums.

A DWI defense lawyer knowledgeable about Minnesota’s implied consent laws can discuss your options in the event of a canceled driver’s license from a DWI offense or test refusal. The lawyer can protect your driving privileges and preserve your freedom by aggressively fighting your DWI or test refusal charges.

Immediate Consequences of Refusing a Breathalyzer

Refusing a breathalyzer may lead to license suspension for 90 days to 12 months. It may also result in automatic and immediate license revocation for 12 months.

Getting arrested and held in jail until arraignment is another immediate consequence of test refusal. You may have to wait until Monday or Tuesday morning to get arraigned following an arrest on a weekend.

You may also stay in jail until the arresting officer obtains a warrant to compel you to undergo a BAC test.

Impact of a Refusal on Criminal Charges

Criminal test refusal charges in Minnesota can be either third- or second-degree DWI based on the number of existing aggravating factors. A third-degree DWI test refusal charge applies to a defender accused of refusing to take a breathalyzer test for the first time within the past ten years.

A second-degree DWI test refusal charge applies to a defendant who allegedly refuses to take a breathalyzer test where one or multiple aggravating factors exist. These aggravating factors include one or two previous DWI convictions or driving privileges revocation within ten years, or the presence of a minor (below 16 years) in the car at the time of the accident or arrest.

Exceptions and Defenses for Refusing a Breathalyzer Test

Minnesota law states that you cannot be compelled to submit to a test once you refuse it, unless compelling circumstances requiring a chemical BAC test exist in your case. One example is when you get into an accident involving an injury or death. Another example is when you become unconscious immediately after an accident. In both scenarios, law enforcement officers will subject you to a test without your consent.

Possible defenses for refusing a breathalyzer test include officer error, lack of probable cause, or medical exemption certificate.

Circumstances Where Refusing a Breathalyzer Test May Be Legally Accepted

Refusing a breathalyzer test may be legally accepted in some circumstances, including:

  • When an officer makes an illegal demand: You may have a right to refuse a breath test if an officer oversteps his or her boundary when asking for a test.
  • When you have a justifiable reason for refusing: You can lawfully decline a breath test for compelling reasons, such as a debilitating injury or health issue, damaged breathalyzer mouthpiece, or misunderstanding between you and a police officer due to a language barrier.
  • When an officer fails to inform you of your obligation to give a sample: You can lawfully refuse a breath test if an officer fails to clearly explain your obligation to give a breath sample and the repercussions of refusing to do so.

Defenses That Individuals May Use to Contest a Refusal Charge

Several defenses are available to drivers facing test refusal charges. The best defense for your situation will depend on the unique details of your case. These defenses include:

Possession of a Medical Exemption Certificate Prepared by a Recognized Doctor

This certificate says that a person cannot give a breath sample because of the person’s health status or disability. It may also state that providing a breath sample could compromise a person’s health.

The holder of this certificate must always carry and produce it when asked for a breath sample. The police can, however, require the holder to give a blood or urine sample instead of a breath sample.

Officer Error

An officer’s failure to read an Implied Consent Advisory can be a potential defense to a breathalyzer test refusal. As mentioned earlier, the police officer has a legal duty to read you the advisory that will remind you that you consented to a chemical BAC test by obtaining a driver’s license, and refusing the test will lead to consequences. You can use the officer’s failure to read the advisory as a defense against your test refusal charge.

Lack of Probable Cause

This defense applies if the law enforcement officer had no justifiable reason to pull you over or to believe you were operating, controlling, or driving your vehicle while impaired.

Driveway Defense

You can raise this defense to justify test refusal if the officer arrests you in your driveway instead of on the road.

Is Refusing a Breathalyzer Test a Wise Decision?

Test refusal has its advantages and disadvantages. A lawyer who has resolved cases like yours can quickly assess the circumstances of your DWI case and guide you on the best step to take. So, it is important to consult a lawyer before making a decision about a breathalyzer test. Note that a lawyer cannot advise you to refuse a breathalyzer test, as it is a crime in Minnesota.

The penalties for failing the test and getting convicted of DWI for the first time are less serious than those for test refusal. In such a situation, taking the test is a wise decision.

A test refusal would deny prosecutors crucial evidence to support their case against you. In some instances, you can take advantage of this situation to negotiate a better plea deal or push for a case dismissal.

The prosecution team can, however, submit evidence of test refusal at trial. The prosecution can argue that your refusal to take the test implies that you were driving while impaired with alcohol or other intoxicants. It can also present other proof, like the arresting officer’s observations of your careless driving, your actions if you get pulled over for DUI, and whether you had slurred speech and smelled of alcohol.

A breathalyzer test refusal does not prevent law enforcement officers from obtaining a search warrant to perform a blood or urine test. So, you must carefully consider all possible outcomes before taking or refusing a breathalyzer in Minnesota.

Why You Should Hire a DWI Defense Lawyer

In-depth Knowledge of Minnesota’s DWI Laws

A DWI defense lawyer is familiar with all the laws and regulations of driving while impaired in Minnesota. The lawyer is conversant with recent case rulings and changes in the law affecting DWI cases. He or she can leverage this knowledge to guide you on the best course of action after the police arrest you and request you to take a breath test.

Help Lower or Avoid Penalties for DWI or Test Refusal Conviction

As previously mentioned, a DWI or test refusal conviction can result in harsh penalties, such as incarceration, fines, and driver’s license suspension or cancelation. An aggressive lawyer can help you lower these penalties or avoid them altogether.

File Motions

Your lawyer may initiate a pretrial motion, depending on the specific facts and evidence available in your case. The lawyer may, for instance, file a motion to dismiss your DWI charges on the grounds of a violation of your rights during an arrest or breath test administration. Other grounds for a motion to dismiss include lack of probable cause and inadequate evidence.

Your lawyer can also file a motion to suppress. This motion tries to convince the judge to exclude certain evidence presented by the prosecution against you. Evidence obtained in violation of your constitutional right may be eligible for suppression.

The lawyer will also file an administrative hearing request with the Minnesota Department of Public Safety following your driver’s license suspension or revocation. He or she will submit the request on time and include all the relevant documents.

Compile Evidence and Handle Plea Bargains

Strong and reliable evidence is crucial in winning a DWI or test refusal case. It also puts you in a better position during plea negotiations with the prosecution. As such, your lawyer will compile the evidence necessary to build a strong defense strategy. Evidence may include police reports, pictures, surveillance footage, witness statements, expert witness testimony, and accident reconstruction reports.

Streamline the Process and Minimize Stress

Criminal cases, such as DWI test refusal, often leave Minnesota defendants and their family members stressed. A lawyer can smoothen the process by handling paperwork, filing motions, negotiating with the prosecution, and arguing your case during trial proceedings. The lawyer can take you through the legal system and answer any questions you might have throughout the process, such as whether you can refuse a breathalyzer.

Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: State of Minnesota Minnesota State Court Minnesota Federal Court 8th Circuit Federal Court of Appeals State of Maryland

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