Testing Refusals

All States have some form of an implied consent law, which provides that as part of accepting the agreement for receiving a license, a driver agrees to provide a breath, blood, or urine sample when prop­erly requested. However, the National Highway Traf­fic Safety Administration has found that the percentage of people who refuse to provide breath samples when arrested for DWI varies considerably across States.  Testing refusals lead to issues that judges need to be aware of in both the context of a trial for the criminal charge as well as any administrative action against the driver’s license.

DUI/DWI Laws. Insurance Institute for Highway Safety, May 2012. – This site describes, by state, the consequences for refusing to take a breath test and whether or not it triggers a mandatory ignition interlock sanction.

Use of Warrants to Reduce Breath Test Refusals: Experiences From North Carolina. NHTSA, 2011 – The objective of this study was to examine one possible strategy to decrease refusals rates the use of a search warrant to obtain blood samples from a driver who refuses to provide a breath sample.  Three counties in North Carolina established the use of warrants in cases of breath test refusals and were research sites. This report presents case study information on their experiences with the implementation and use of warrants.  In general, police officers in these participating counties report that the 15 to 60 minutes of added processing time needed to obtain a warrant and draw blood was time well spent, and that the chemical evidence obtained from blood was of great value.

Drunk Driving, Implied Consent, and Self-Incrimination. Kehinde A. Ogundipe and Kenneth J. Weiss. 37 Journal of the American Academy of Psychiatry and the Law Online (2009): 386-391. - Miranda-type warnings by police officers has been ruled on recently in New Jersey. In a superior court appellate decision, State v. Spell, the court outlined the necessary procedures, concluding that, although motorists have no right to refuse testing, police officers have an obligation to issue sufficient warnings before the motorist decides how to proceed. In authors discuss the legal basis of field sobriety tests, zero tolerance policies, whether or not refusal warnings signs on the roadside or comprehensible and the Spell case.

Refusal of Intoxication Testing: A Report to Congress. NHTSA, 2008 – This report discusses the important issue of breath test refusals. It begins with a short background on the impaired driving problem and the issue of missing BAC information for both drivers arrested for impaired driving and drivers involved in fatal or serious injury crashes. Next, various laws governing impaired driving and the role of BAC test information under those laws are reviewed. That is followed by a brief overview of the DWI arrest process to provide a foundation for the discussion of refusals. The results of several recent studies examining the breath test refusal issue, including breath test refusal rates in 2005, and a comparison to rates in 1987 and 2001 are presented; followed by the effect of refusals on prosecution and adjudication of DWI cases; next is a description of a promising strategy to decrease refusals – the use of search warrants for bloods draws. The report concludes with recommendations that would decrease the incidence of missing BAC data.

Research Note: Breath Test Refusals. NHTSA, 2007 – This note describes testing refusals on a state by state comparative basis.  It also describes research done by the Preusser Research Group on the use of warrants to obtain blood samples.  It has case studies from 6 states that utilize this procedure.

Use of Warrants for Breath Test Refusal: Case Studies. NHTSA, 2007 – This study investigated the use of warrants to obtain blood samples from drivers arrested for alcohol-impaired driving and who refuse to provide breath samples when requested to do so by law enforcement officers. Case studies were conducted in four States: Arizona, Michigan, Oregon, and Utah.

Breath Test Refusals in DWI Enforcement - An Interim Report. NHTSA, 2005 – Breath test refusal rates nationwide have remained stable at about one-quarter of all drivers arrested for DWI from 1996 to 2001. States with statistically significant changes in refusal rates are split evenly between those with increases and those with decreases. In five case-study States, first-time offenders generally constitute the majority of those arrested for DWI and a majority of those refusing the breath test, even in those States where it is to their advantage to take the test. First-time offenders often do not understand the consequences of taking or refusing the test. In many States, repeat offenders refuse the test more frequently than first-time offenders. In all 5 case-study States, consequences of refusal are less for repeat offenders than the consequences of taking and failing the test. In Connecticut and Maryland, submitting to the breath test is usually beneficial for first-time offenders. The report discusses possible strategies States and jurisdictions can implement to decrease breath test refusals.

SJC Steers Off Course: DUI Breath Test Refusals Inadmissible. Joseph F. Stanton. 28 New England Law Review (1993): 1169. – This Note focuses on the reasoning of the Massachusetts Supreme Judicial Court in the Opinion of the Justices and the many state courts that have considered the issue of whether evidence of a suspects refusal to submit to a breath test is constitutionally admissible in a DUI criminal proceeding. Part II of this Note discusses driving under the influence legislation and explains the use and significance of refusal evidence.

Implied Consent Refusal Impact. NHTSA, September 1991. – This report examines the extent to which persons suspected of DWI refuse to take a chemical test as required by law. It also describes implied consent laws in 50 states, analyzes the relation of law features to refusal rate, and analyzes the characteristics of test refusers in four states. The report concludes that there is a potential  test-refusal problem in the U.S. to the extent that 2% to 71% of drivers arrested for DWI in 1987 refused to take a chemical test. The report recommends strong traffic law system action against refusers to include criminal sanctions for some “hard core” refusers. Other potential actions include treatment and public information and education initiatives.