As more state and local law enforcement officials enact "no-refusal" DUI enforcement policies, it has become increasingly important for motorists to understand how the law deals with those who refuse blood alcohol tests.
Motorists suspected of drunk driving typically are asked to submit to a breathalyzer test to determine blood-alcohol concentration (BAC). A positive test result (0.08 percent or higher) triggers DUI charges, while refusal to take the test typically results in an automatic driver's license suspension.
This problem theoretically could be overcome by obtaining a search warrant for the DUI suspect's breath or blood, which presents some logistical hurdles. Before advances in technology, paper warrants had to be brought to the judge's home or office; the process often would take hours. Meanwhile, the DUI suspect would sober up at a rate of about 0.01 percent (BAC) per hour.
All states have "implied consent" laws in place, which punish the refusal to take a blood alcohol test, however many states have found these laws insufficient to deter drunk driving. A 2003 NHTSA study found that implied consent laws fail to significantly reduce blood alcohol test refusals. The study also concluded that suspects who avoid testing often avoid serious DUI penalties.
By the time the officer obtained a warrant and secured a blood draw by a licensed health care professional, the suspect might already be sober or at least under the 0.08 percent BAC threshold.
Now, officers in many jurisdictions are able to contact on-call judges remotely and have an electronic warrant (PDF, NHTSA) sent directly to their smart phones or computers, solving the time delay issues. These are called no-refusal policies because refusal of a court-ordered BAC test (via warrant) can lead to more serious contempt charges.
You can still refuse a BAC test when no-refusal policies are in effect but you can't legally refuse a search warrant for a BAC test. Texas police are even authorized to use force to obtain a blood sample with a warrant. So technically you are free to refuse; but refusal is becoming a much less attractive option for suspected drunk drivers.
Currently, at least 30 states have the legal authority in place to conduct no-refusal initiatives, though not all of these states are actively putting them into practice, and many places use no-refusal policies during selective time periods. State and local jurisdictions often have high-profile no-refusal weekends during holidays and other periods of high alcohol consumption in order to deter drunk drivers in the first place.
The American Civil Liberties Union (ACLU) is one of the most vocal critics of no-refusal policies, claiming they violate drivers' rights against unreasonable search and seizure. The ACLU also claims no-refusal initiatives raise questions regarding medical privacy, specifically whether any additional data gathered from a blood draw is being used.
The policies also have been challenged in the courts but so far none have prevailed. Ask a DUI attorney in your state to find out more about DUI enforcement policies in your neighborhood.
If you've been arrested and charged with a DUI, it's a good idea to learn more about the DUI laws in your state by speaking to a local DUI attorney. An experienced attorney in your jurisdiction will also be able to evaluate any evidence against you, including your performance on field sobriety and chemical tests, and more.
