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Can You Refuse a Breathalyzer Test?

By Javaria Sagheer · Updated October 2026
TL;DR The safe and legal choice is never to drive after drinking or using drugs — and if you’re asking whether you can refuse a breathalyzer, the honest answer is that you can say no, but every state has an implied consentImplied consent: a state law saying that by driving you have already agreed to alcohol or drug testing if you are lawfully arrested for impaired driving. Refusing brings its own penalties. law, and refusing the official test after a DUI arrest typically costs you your license. The Supreme Court drew the constitutional line in 2016: after a lawful drunk-driving arrest, police may require a breath test without a warrantWarrant: a judge’s written authorization based on probable cause. Police generally need one to draw blood from a driver who does not consent., but a blood test generally takes a warrant or a real emergency. The handheld preliminary breath testPreliminary breath test: a handheld roadside device used before arrest to help an officer decide whether to arrest. It is not the official test given after arrest. and the roadside balance exercises follow separate, state-by-state rules. Refusing does not stop an arrest, and in some states it is a crime of its own. Never physically resist any test.

The Pen, the Tube, and the Machine: Three Tests in One Traffic Stop

It’s 11:40 on a Saturday night. Blue lights fill your mirror, you pull over, and a few minutes later an officer is asking you to follow a pen with your eyes, walk a straight line, and blow into a small plastic tube. Start with the part that isn’t a legal question. The only safe choice — and the only one the law fully protects — is to not drive after drinking or using drugs. Call a ride, hand over the keys, stay where you are. Nothing below is a way to beat a test or avoid getting caught. What follows is the law, and it draws lines most drivers have never heard of. One stop can involve three kinds of tests, each with its own rules and its own price for saying no. Here is what each one is, what refusing costs, and what to do if it happens to you or to the friend who is driving.

Can You Refuse a Breathalyzer? The Short Answer

Start with the rule that is the same everywhere. In Birchfield v. North Dakota (2016), the Supreme Court noted that all 50 states have implied consent laws: as a condition of driving, you agree to alcohol testing if you are arrested or otherwise detained on suspicion of drunk driving. Saying no later is treated as breaking that deal. Birchfield also separated two kinds of tests. In the Court’s words: “Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” A blood draw generally needs a warrant, your consent, or a genuine emergency — and a state may not make it a crime to refuse a blood test police have no warrant for. What a state may do is attach civil penalties and evidentiary consequences to refusing; the Court left those laws standing. NHTSA, the federal highway safety agency, reports that all states except Wyoming have set separate penalties for refusing, typically an administrative license suspension or revocation, and that as of June 2018 refusal was a criminal offense in at least 12 states. What refusing the official post-arrest test costs in six states from different regions:
  • California — one-year suspension; two- or three-year revocation with prior DUI-related offenses in the past 10 years (Vehicle Code § 13353).
  • New York — revoked at least one year, or 18 months with a prior refusal or related conviction in the past five years, plus a $500 civil penalty (Vehicle and Traffic Law § 1194).
  • Florida — one year, or 18 months after an earlier refusal suspension; a first refusal is also a second-degree misdemeanor (Fla. Stat. §§ 316.1932, 316.1939).
  • Texas — 180 days, or two years with a prior alcohol- or drug-related enforcement contact in the past 10 years (Transportation Code § 724.035).
  • Ohio — one year for a first refusal, up to five years with repeated refusals or convictions (R.C. 4511.191, 4510.02).
  • Washington — revoked or denied for at least one year (RCW 46.20.308).
To find your own state’s rule, search “[your state] implied consent statute” on your state legislature’s website, then read your state DMV’s page on administrative license suspension for the hearing deadline.

Breath, Blood, and Roadside Tests, One Situation at a Time

Situation 1 · Roadside exercises Can you refuse a field sobriety test?The eye test, the walk-and-turn, the one-leg stand: these are coordination exercises an officer uses to decide whether there is probable cause to arrest. The implied consent sections we opened for the six states above set license penalties for refusing chemical tests — breath, blood, and in some states urine or oral fluid. None of those sections sets a license penalty for declining the roadside exercises.

That does not make declining free. The lead opinion of Washington’s Supreme Court in State v. Mecham (2016) said, “There is no legal obligation in Washington to submit to FSTs” — and still let the prosecutor tell the jury the driver had refused. Vermont’s Supreme Court ruled the same way that year. An officer can also arrest on everything else: your driving, your speech, the smell of alcohol. The rule depends on your state.

Situation 2 · The handheld device The roadside breath test before any arrestSome officers carry a small handheld breath device to help decide whether to arrest. The rules for refusing it differ sharply. California’s statute requires the officer to tell you that you have the right to refuse it (Vehicle Code § 23612(i)) — with a different rule for drivers under 21, covered below. New York’s statute goes the other way: a driver who has been in an accident or committed a traffic violation “shall, at the request of a police officer, submit to a breath test” (Vehicle and Traffic Law § 1194(1)(b)).

The handheld test is not the official one. California’s statute says taking it does not satisfy the chemical test required after arrest, and an officer with other evidence can arrest you either way.

Situation 3 · After arrest What happens if you refuse the official breath testThis is the test on the larger machine, given after you are under arrest. Implied consent laws are written for it, and under Birchfield police need no warrant for it. You can still say no — but the price comes in three parts.

First, the license penalty listed above, separate from any criminal case. Second, evidence: the statutes we opened in California, Florida, New York, Texas, and Washington all say a refusal can be used in court. Third, in some states refusing is a crime. Minnesota makes it a crime to refuse a breath test (Minn. Stat. § 169A.20), and Florida made a first refusal a misdemeanor in 2025.

Compare the numbers. Washington’s required warning says refusing costs the license for at least one year, against at least 90 days for testing over the limit. Refusing also leaves the officer free to ask a judge for a blood warrant.

Situation 4 · Blood Can police take your blood without a warrant?Generally no. Missouri v. McNeely (2013) held that alcohol fading from the bloodstream is not an emergency that excuses a warrant in every case; judges decide case by case. Birchfield added that a blood test is not automatically allowed just because of an arrest. The exceptions are your consent, a genuine emergency like the one in Schmerber v. California (1966), and — under the four-justice lead opinion in Mitchell v. Wisconsin (2019) — almost every case where a driver is unconscious and must be taken to a hospital.

Warrants can arrive fast. Under “no refusal” programs, as the U.S. Department of Transportation has described them, officers phone a judge and get a warrant on the spot when a suspected drunk driver rejects a breath test. Texas requires officers to warn drivers that they may apply for a warrant after a refusal. Once a judge signs it, the test is no longer a request. Never fight it physically — say that you object, and let a lawyer challenge it afterward.

Situation 5 · Under 21 Under-21 zero tolerance: the limit is close to nothingIf you are under 21, 0.08 is not your limit. A federal law, 23 U.S.C. § 161, withholds highway money from any state that does not treat a driver under 21 with a blood alcohol concentration of 0.02 percent or more as driving while intoxicated. NHTSA reports that zero-tolerance laws have been in effect in all states since 1998.

The state versions are strict. California suspends an under-21 driver’s license for one year at 0.01 percent — and for one year for refusing the handheld test. Texas makes it an offense for anyone under 21 to drive with any detectable amount of alcohol (Alcoholic Beverage Code § 106.041). Florida suspends for six months at 0.02 and one year for a first refusal (Fla. Stat. § 322.2616). Washington makes 0.02 a misdemeanor for drivers under 21 (RCW 46.61.503).

What to Say and Do If You Are Asked to Take a Test

Calm, polite, hands visible — and never physical
1. When the lights come on:

Pull over safely, keep your hands visible, and hand over your license, registration, and insurance. The basics are in our guide to your rights during a traffic stop.

2. If you are asked to do roadside exercises or blow into a handheld device:

“Officer, am I required by law to take this test?” If you decide to decline: “I’m respectfully declining that test.”

3. If you are arrested and asked to take the official breath or blood test:

Listen to the entire warning the officer reads — it states your state’s penalty for refusing. Then answer clearly, yes or no. Do not argue or stall.

4. If you want a lawyer:

“I want to talk to a lawyer, and I’m going to remain silent.” That protects you during questioning. It may not pause the test: California’s required warning says you have no right to an attorney before you decide.

5. If there is a warrant, or the test goes ahead over your objection:

Say once, calmly, “I do not consent.” Then hold still.

The Supreme Court said in South Dakota v. Neville that asking whether you will take a blood-alcohol test is not an interrogation under Miranda, so the rules on when police must read you your rights cover what you say, not whether you take the test. A request to look through the car is a separate question: see when police can search your car.
What to Do If You Refused a Test or Were Arrested
  1. Keep every paper you were handed. In California the suspension order doubles as a temporary license good for 30 days.
  2. Request the license hearing before the deadline. It is separate from the criminal case, and the window is short: 10 days in California and Florida, 15 days in Texas, 7 days in Washington.
  3. Write everything down the same day: the time and place, the reason given for the stop, which tests were requested, the words of any warning, and the officers’ names.
  4. Talk to a lawyer before the hearing. If you are charged and cannot pay for one, ask the court about a public defender.
  5. Do not drive while your license is suspended.
  6. If you are a minor, ask for a parent or guardian right away — see whether police can question a minor without a parent.
The California DMV and Texas Department of Public Safety pages in Sources explain how to request a hearing.

Breath and Blood Tests: What Police Can vs. Can’t Do

✓ POLICE CAN

  • Require a breath test without a warrant after a lawful drunk-driving arrest
  • Ask a judge for a blood warrant — sometimes by phone
  • Report your refusal so the state suspends or revokes your license
  • Arrest you on other evidence even if you take no test at all
  • Describe your refusal in court, where state law allows it

✗ POLICE CAN’T

  • Draw your blood after a routine arrest with no warrant, no consent, and no emergency
  • Treat fading alcohol as an automatic emergency in every case
  • Charge you with a crime for refusing a blood test they have no warrant for
  • Use a refusal as trial evidence where state law forbids it
  • Physically force you through roadside balance exercises — Vermont’s Supreme Court has said officers may not
The honest trade-off: refusing is not a loophole. Without a test you can still be arrested and charged, and in the states compared above the license penalty is decided separately from the criminal case. Taking the test produces a number that can convict you. Neither path is safe once you have driven impaired — the only good decision is the one made before you start the car.

Breathalyzer Refusal Myths, Busted

Myth: “If I refuse, they have no evidence and can’t charge me.”
False. Officers testify about your driving and your speech, a judge can issue a blood warrant, and under South Dakota v. Neville (1983) the U.S. Constitution lets a state tell the jury you refused.
Myth: “Police need a warrant for any test.”
False for breath. Birchfield allows a warrantless breath test after a lawful drunk-driving arrest. Blood is the test that generally requires a warrant.
Myth: “I don’t have to decide until my lawyer gets here.”
It depends on your state. California’s statute requires officers to say you have no right to an attorney before deciding. Ask for a lawyer anyway — just know the clock may not stop.
Myth: “Refusing is just a ticket.”
False. The six states compared above take the license for 180 days to a year or more for a first refusal, and Florida and Minnesota make refusing a breath test a crime.
Myth: “I’m under 21, but I’m fine if I’m under 0.08.”
False. Zero-tolerance laws set the under-21 limit at 0.02 percent or lower — 0.01 in California, any detectable amount in Texas.

Breathalyzer Refusal Questions People Actually Ask

Tap a question to open it.
What happens if you refuse a breathalyzer after a DUI arrest?
You lose your license for a set period, and you can still be arrested, charged, and tested by warrant. The suspension is separate from the criminal case: one year in California, Florida, and Ohio for a first refusal, at least one year in New York and Washington, 180 days in Texas. In some states the refusal is also a crime.
Can you refuse a field sobriety test?
In the state rulings we opened, yes — but declining can be used against you. The lead opinion in Washington’s State v. Mecham (2016) said there is no legal obligation to perform the exercises, then allowed the refusal as trial evidence; Vermont’s Supreme Court ruled similarly. Check your own state before assuming either rule.
Can police take your blood without a warrant?
Generally no. Under Missouri v. McNeely (2013) and Birchfield v. North Dakota (2016), a blood draw needs a warrant, your consent, or a genuine emergency. The main exception is an unconscious driver taken to a hospital, where the lead opinion in Mitchell v. Wisconsin (2019) said a warrantless blood test is almost always allowed.
Can refusing a breath test be used against you in court?
Under the U.S. Constitution, yes. South Dakota v. Neville (1983) held that a refusal is not protected by the privilege against self-incrimination. State law can be more protective: Georgia’s Supreme Court held in Elliott v. State (2019) that the Georgia Constitution bars using a breath-test refusal as trial evidence, and New York allows refusal evidence only if the driver was warned in clear and unequivocal language.
Is refusing a breath test a crime?
In some states, yes. Minnesota makes it a crime to refuse a breath test, and Florida has treated a first refusal as a second-degree misdemeanor since October 1, 2025. Ohio makes it an offense for a person with an impaired-driving conviction in the past 20 years to drive under the influence and then refuse. No state may make it a crime to refuse a blood test police have no warrant for.
Do the rules change if you are under 21?
Yes — the alcohol limit drops to 0.02 percent or lower, and the penalties for refusing still apply. In California an under-21 driver loses the license for a year for refusing even the handheld roadside test. Florida suspends an under-21 driver for one year for a first refusal.
How long do you have to challenge a license suspension after refusing?
Days, not weeks. You must request a hearing within 10 days in California and Florida, 15 days in Texas, and 7 days in Washington. Read the notice you are handed at arrest for your own state’s deadline, and request the hearing first if you have not found a lawyer yet.

Breath Test Law: Key Terms, Explained

Implied consent — the state law saying that by driving you already agreed to chemical testing after a lawful impaired-driving arrest.
Preliminary breath test — the handheld roadside device used before arrest; California calls it a preliminary alcohol screening (PAS) test.
Evidentiary test — the official breath or blood test given after arrest, the one implied consent penalties attach to.
Field sobriety tests (FSTs) — roadside coordination exercises such as the walk-and-turn and the one-leg stand.
Administrative license suspension — a license penalty imposed by the state’s licensing agency, separate from any criminal case.
Exigent circumstances — a genuine emergency that can excuse a warrant, decided on the facts of each case.
Zero tolerance — the under-21 alcohol limit of 0.02 percent or lower.

The Court Cases Behind Breath and Blood Test Law

The full opinions are linked in Sources. The last card has its own breakdown in our case library.
Birchfield v. North Dakota (2016)The rule this article rests on: a warrantless breath test is allowed after a lawful drunk-driving arrest, a warrantless blood test is not, and a state cannot make it a crime to refuse a blood test without a warrant.
Missouri v. McNeely (2013)A driver refused a breath test and police had his blood drawn at a hospital without a warrant. The Court held that alcohol leaving the bloodstream does not create an emergency in every case.
Mitchell v. Wisconsin (2019)The unconscious-driver case. Four justices said police may almost always order a warrantless blood test when a suspected drunk driver must go to a hospital before a breath test is possible. There was no majority opinion.
Schmerber v. California (1966)The starting point: blood is physical evidence, not testimony, so the Fifth Amendment does not protect it, and a warrantless draw was reasonable where the officer could reasonably believe he faced an emergency.
South Dakota v. Neville (1983)A driver refused a blood-alcohol test, and the state wanted the jury to hear about it. The Court held a refusal is not protected by the privilege against self-incrimination, while admitting the choice “will not be an easy or pleasant one for a suspect to make.”
Miranda v. Arizona (1966)The source of your right to stay silent and ask for a lawyer during police questioning — rights that cover what you say after an arrest, not the test itself.Read the full case →

Breath Test Refusal Law That’s Still Moving

The edges to watch as of October 2026:
  1. Refusal as a crime — Florida’s Chapter 2025-121 took effect October 1, 2025, creating a criminal penalty for a first refusal of a breath or urine test after a DUI arrest.
  2. Refusal as evidence — Kentucky’s Senate Bill 66 was signed on April 23, 2026. The legislature’s summary says it bars using a blood-test refusal in court as evidence of DUI.
  3. Field sobriety refusals — Hawai’i’s Supreme Court heard argument on June 4, 2026, in Gleason v. Administrative Director of the Courts on whether a factfinder may infer consciousness of guilt from a driver’s refusal to do the exercises.
  4. New kinds of tests — Ohio’s implied consent statute, in the version effective April 9, 2025, lists oral fluid alongside blood, breath, and urine.
When these move, this article gets updated.
One important note: the Supreme Court sets the constitutional limits, but nearly everything a driver actually feels — how long the suspension lasts, whether refusing is a crime, whether a handheld test can be declined, how many days you have to request a hearing — is state law, and state and federal rules stack on top of each other. The six states compared here are examples, not a map. Look up your own state’s implied consent statute before you rely on anything here.

The Bottom Line on Whether You Can Refuse a Breathalyzer

You can say no, and saying no has a price. After a lawful arrest, the Constitution lets police require a breath test without a warrant and lets your state take your license for refusing; a blood draw generally takes a judge’s signature. The roadside exercises and the handheld device sit under looser, state-by-state rules. None of it is a way out: a refusal does not stop the arrest, the warrant, or a hearing deadline measured in days. Stay calm, never resist, ask for a lawyer, request the hearing on time — and make the one decision that removes every one of these questions: do not drive after you drink or use drugs. Now you know.
Before the testYour rights during a traffic stop → The other questionCan police search your car? → The whole subjectExplore Know Your Rights →

Sources

Primary sources:

LawJustic is for educational purposes only and does not provide legal advice. Impaired-driving law varies by state and changes often. If you were arrested or received a notice of suspension, the hearing deadline may be days away — contact a licensed criminal defense attorney in your state right away. Last reviewed: October 2026.

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