Should You Refuse a Breathalyzer Test?

By Attorney James Whalen | Published on June 3, 2024

Whether you have had a drink or two at dinner or too many at a party, you likely dread having to take a breathalyzer test. What many wonder is whether they should refuse the test if they feel like they’re in danger of failing it. Those who consider refusing the test should know that understanding implied consent laws in South Carolina is crucial to their decision.

Have you been arrested or charged with an alcohol-related traffic crime? If so, an effective defense is what you need to protect your rights and your future. Call (864) 770-7710 to speak with an attorney from our team and get started on your defense.

Understanding Implied Consent Laws in South Carolina

Should you refuse breathalyzer tests of your blood alcohol content (BAC)? Most legal experts would say you shouldn’t without first gaining an understanding of South Carolina’s implied consent laws. These laws, in the context of DUI cases, refer to the consent all drivers are considered to have given simply by utilizing South Carolina roads.

Refusing to honor this consent and take a breathalyzer will result in consequences. In many cases, the question is, “Which consequences are worse? Those associated with a DUI conviction or those that go along with refusing to consent to the test?”

Should You Refuse a Breathalyzer Test? (Weighing the Options)

First and foremost, if you are being asked to take a breathalyzer (or are even pulled over for that purpose), you should know that your future may be at risk. Police asking you to take a breathalyzer are looking for evidence to prosecute you for DUI. You should be aware and guard what you say.

So, should you refuse a breathalyzer test? Weighing the options is crucial to making the right decision. In most cases, DUI conviction penalties are harsher than punishments for failing to give a test. Failing to submit to a test is punishable by:

• An immediate administrative license suspension for six months
• Completion of drug and alcohol abuse courses
• License reinstatement fine and costs.

If you refuse to test for a second time, your license will be suspended for nine months, and your third refusal will result in a 12-month suspension.

For anyone considering refusing to take a breathalyzer test, these penalties must be weighed against the benefits of not having to face DUI punishments and not having a DUI on your record.

For a first-time DUI offense, a convicted individual can expect:

• Six-month license suspension
• Potential jail time
• Fines.

As you can see, the first-time DUI consequences are slightly worse than those for refusing to take a breathalyzer. A person worried about their driving and criminal records for work or other reasons may indeed choose to take the refusal consequences over the conviction repercussions.

When repeat offenses come into play, the decision might be different. Failing to submit to a test more than once, as mentioned above, results in a longer license suspension.

A person who has previously refused testing and whose situation cannot withstand a 9- or 12-month license suspension should probably not deny the test if they have no previous DUIs or alcohol-related charges.

Each situation is different, and each person will have a different calculus. What’s important is an understanding of the relevant factors as well as the repercussions of your ultimate decision.

The defense lawyers at Whalen Montalvo are available 24/7 to provide clients with the robust defense they require and deserve.

The Importance of Legal Counsel

The importance of legal counsel cannot be overstated. A DUI defense attorney understands the rules of criminal prosecutions and knows how to fight for and procure optimal results for their clients. They operate effectively and aggressively when defending a defendant’s future.

Some of the many tasks they engage in during their defense of clients include:

• Thorough investigations of the incident
• Aggressive negotiations with prosecutors
• Detailed testing and analysis of equipment and test results
• Vigorous defense tactics, such as motions to dismiss and motions to exclude evidence
• Guidance tailored specifically to your circumstances
• Robust defense at trial if a plea cannot be reached.

If you have been charged with any crime, there is no suitable substitute for the defense work of a seasoned DUI defense attorney who cares.

Alternatives to Refusing a Breathalyzer Test

One alternative to refusing a breathalyzer test is to consent to taking the test. If you do consent, you should know that you may blow over the legal limit. Another alternative to refusing a breathalyzer test is to avoid it altogether. You can’t refuse something that hasn’t been offered to you. Stay at home or have someone else drive if you have been drinking, and you won’t have to face this test or its repercussions.

If you are facing criminal DUI charges brought by the state, don’t hesitate to reach out to a law firm that will provide you with the highest quality defense. Reach out to Whalen Montalvo for a consultation at (864) 770-7710 today.

James M. Whalen

I grew up right here in Greenville, South Carolina. Following highschool, I attended Rhodes College in Memphis, Tennessee, where I was an NCAA Scholar-Athlete for the Rhodes Lynx soccer program.

I completed my law degree at University of South Carolina School of Law, where I was on the mock trial team and an editor for the Journal of Law and Education. Following graduation, I served as a judicial law clerk for Senior Judge Robert H. Hodges, Jr. on the Court of Federal Claims in Washington, D.C. My experience in D.C. trial courts solidified my desire to become a trial lawyer.
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