Welcome to Ask a Lawyer, where I, a lawyer, respond to your questions. Got a vexing legal issue? Send it over, or drop it in the comments below. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, you should get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.

So let’s try one:

A paralegal friend told me recently that you should never, ever consent to a breathalyzer test when pulled over, even and especially if you’ve only had one drink and there’s no way you’re over the limit. She swore that they’ll make you blow into it so hard/frequently it may register as over anyway, and the risk of that or some other incriminating malfunction was far greater than the risk of refusing the test and being arrested. (She went on to describe what happens then and why it’s preferable, but I can’t remember all of that, as alcohol was involved in this conversation.) Is this true? Are different states radically different in this regard? Is this notion generally insane?

Generally insane? Cupping the police officer’s balls is generally insane. Your friend’s advice is not generally insane. But it is kind of wrong. Never trust an absolute statement like that (except for this statement about absolute statements—you should trust this one).

First up: States do indeed differ on this issue. So my discussion here really goes to setting up a framework that will help with the analysis I would need to run in order to determine, in a specific instance, whether I would refuse a breathalyzer.

Say I’m on a date, and on the first cocktail in, I realize that she’s not the one: She laughs at her own jokes and wears the same perfume as my mom. I’m too old to politely ride this out, so I head home to quietly sit alone in my dark apartment, like most nights.

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I get pulled over on the way home; I’m nervous and trip during the field sobriety test. The officer asks me to blow into a breathalyzer. In my state—the pretend state I live in for the purposes of this question—refusal to submit to the field breathalyzer results in an automatic six-month license suspension. It also gives the officer probable cause to arrest me—even if I was able to flawlessly recite the Dothraki alphabet backwards during the field test.

My state has a no-refusal law, meaning that if I refuse the breathalyzer, the police can get a quick warrant to force me to submit. This can result in contempt charges, increased fines, and a trip downtown for a forced blood draw. The length of a first-time DUI license suspension after arrest and a trial in my state is 60 days. Compare that to the six months for initially refusing a breathalyzer. You can see the numbers starting to shape up here. It’s almost like they drafted the law to incentivize you to just submit to the breathalyzer. Also, in my state, refusal to exhale allegedly boozy stink-breath into a handheld narc robot is not admissible at trial—but in some states, it is.

But all of this rests on something that’s not a pure legal concept: Are portable breathalyzers reliable in the first place? For borderline cases, where someone’s had more than a couple drinks, maybe not. In Massachusetts, there’s been a call for independent investigation on how well breathalyzers are being calibrated—numerous DA’s have even suspended using breathalyzer results because of questions about reliability. But it’s hard for me to imagine that a single drink—that’s going to be about a .02 blood alcohol content for a man of average size—is going to throw off the test results so much as to trigger a false positive above the legal limit. And the prosecutors and defense attorneys I’ve talked to about this point all agree: A false positive is very rare in the case of one drink.

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All that taken together, if I’ve had one drink, I’m going to start thinking that the numbers are supporting my decision to consent: No automatic suspension and very low odds of tripping a .08 on the breathalyzer. If I refuse, that’s an automatic six-month suspension that’s going to cost time and money to reverse. Personally, I value my time and money.

Of course, this is such a borderline case, the one-drink blower that’s been pulled over. The difficult decisions come when there’s more than one drink, and in those cases, there’s likely going to be other substantial points of evidence involved—crazy swerving, bad field test, etc.—to such a degree that you may want to think about whether submitting to a breathalyzer is a good idea. No matter what, this is a highly complex area of law that’s going to be very fact- and jurisdiction-specific, so you need to make your own call based on your own research. And, of course, there’s Uber, Lyft, and whatever crappy app the cab companies are using, all of which will help you avoid this problem in the first place.


Ask a Lawyer is a practicing lawyer with over 15 years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitter.

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