If you get pulled over for suspicion of driving under the influence of alcohol or drugs, one of the first things you might wonder is: Do you have to consent to a breathalyzer? Understanding Oklahoma’s implied consent law is crucial in this situation, as the refusal to take a breathalyzer test can have a direct impact on any resulting DUI case or license suspension case.
At Fassio Law, we defend individuals who are charged with DUI and other crimes. Our law firm was founded by a former prosecutor, so we have the knowledge and insight into criminal law, how the other side prepares their cases, and how to defeat them. Call us today for a confidential case evaluation.
What Is an Implied Consent Law?
Generally speaking, implied consent refers to the act of agreeing beforehand to be tested if law enforcement suspects you of driving under the influence. By virtue of having a driver’s license or driving in the state, you consent to undergo testing if you are suspected of driving under the influence. However, states differ as to when implied consent applies, which types of tests it refers to, and whether law enforcement can force you to take a test against your will.
What Is Implied Consent in Oklahoma?
Implied consent in Oklahoma can subject you to a breath test, blood test, or other test to determine if you have alcohol or another intoxicating substance in your body that is above the legal limit. The Oklahoma implied consent law is memorialized in Oklahoma Statute § 47-751.
Under this law, anyone who drives on Oklahoma roads “shall be deemed to have given consent to a test or tests of such person’s blood or breath” for the purpose of determining if your blood alcohol levelis over the legal limit or your blood, saliva, or urine for determining the presence or any concentration of any other intoxicating substance. The purpose of this law is to make it easier for law enforcement to test people for drugs or alcohol if they are suspected of driving under the influence or committing other offenses behind the wheel.
Importantly, Oklahoma’s implied consent law only applies after an arrest. Therefore, you are well within your rights to refuse a roadside breathalyzer test that police try to administer to get evidence to arrest you.
A law enforcement officer can direct that the test be administered only if they have reasonable grounds to believe you were operating or were in actual physical control of a motor vehicle while under the influence of alcohol or a controlled substance, and after arresting the suspect. The police officer has full discretion over whether a blood or breath test will be administered. If the officer does not designate which test to administer, a breath test is the default option.
Law enforcement cannot administer the test if the driver is unconscious or incapable of refusing to submit to a test. When the implied consent law applies, the officer must provide the suspect with an Implied Consent Test Request that outlines their rights and states the following:
- You’ve been arrested and are being requested to submit to a test or tests to determine the presence or concentration of intoxicants in your body.
- The test will be either a breath or a blood test. If the test is a blood test, it will be performed by approved medical personnel.
- Once you complete the state’s test, you can have an additional test performed at your own expense.
- You are not entitled to consult with an attorney before deciding whether to submit to the state’s test.
- You may refuse the state’s test, but doing so will cause your driving privileges to be revoked or denied.
- If you’re 21 or older and your test result is 0.08 or more alcohol concentration, your driving privileges will be revoked or denied.
- If you’re under 21 and the test result is 0.02 or more alcohol concentration, your driving privileges will be revoked or denied.
The results of the tests are admissible in civil actions, including administrative hearings regarding driving privileges.
Can You Legally Refuse a Breathalyzer?
Yes. Technically, you can refuse a breathalyzer, and law enforcement cannot physically force you to submit to the test. However, a refusal of a DUI test can be used as evidence against you that you knew you would likely fail the test and subject you to administrative penalties.
In some situations, if a driver refuses to submit to a breath test, the arresting officer can request a warrant from a judge for an additional test, such as a blood test. If the court grants the warrant, you would be obligated to comply with the blood test, and the law enforcement officer could use force to obtain the sample if you refuse.
What Happens If You Refuse a Breathalyzer?
If you refuse to take a breath or blood test after being arrested for DUI, the officer will take your driver’s license and serve you with an Officer’s Affidavit and Notice of Disqualification/Revocation. You will only be allowed to drive for another 30 days before your license is automatically revoked. Your driver’s license will be suspended for a minimum of six months up to a maximum of two years. You are subject to longer suspension periods if this is a repeat offense.
Additionally, you will be required to complete Oklahoma’s Impaired Driver Accountability Program. You might have some of your driving privileges reinstated during this course, but your vehicle would be fitted with an ignition interlock device, which can stay on your vehicle for up to five years after you refused a breath test. You will be responsible for paying all costs associated with your refusal, including the installation of the ignition interlock device and its maintenance.
How a Refusal Affects Your DUI Case
In addition to facing administrative penalties for refusing to provide a blood or breath test, you may still be charged with DUI criminal charges even if you refused the test. Some people choose to refuse a breath test because they don’t want the prosecution to have evidence against them that they were driving with alcohol or drugs in their system. However, the prosecution can use the fact that you refused to take a breathalyzer test against you in your criminal trial as evidence.
While the prosecution cannot use your blood alcohol content against you if it doesn’t have this evidence, it can use other evidence that may help establish intoxication, such as:
- Testimony from law enforcement officers who were present
- Video footage from police cars or establishments where you were drinking
- Receipts of alcohol purchases
- Results of field sobriety tests
It’s not necessary in OKC to have a BAC measurement to convict someone of DUI.
Administrative vs. Criminal Penalties for Refusing a Test
It’s critical that you understand that two cases may be occurring simultaneously if you refuse a breath test. You may have a criminal case and an administrative case.
For the criminal case, the prosecution must prove beyond a reasonable doubt that you are guilty of driving under the influence of drugs or alcohol. If you are convicted, you may face criminal penalties, including possible jail time, community service, and fines.
In the administrative hearing, the burden of proof to suspend your driver’s license is:
- Law enforcement had reasonable grounds to believe you were driving under the influence or were in actual physical control of the vehicle.
- You were lawfully arrested.
- The officer properly informed you of the consequences of refusing, including the potential loss of your driving privileges.
- You refused the test.
Can You Be Forced to Take a Breathalyzer?
Law enforcement cannot force you to take a breathalyzer test unless they have a warrant. If they do have a warrant, it will likely require you to submit to a blood test.
Defenses Against a Breathalyzer Refusal Charge
A BAC test refusal can result in the loss of your driving privileges and still serve as evidence of guilt in a drunk driving case or as evidence in cases involving additional charges, such as a charge for child endangerment. However, you may have defenses to the refusal. An experienced criminal defense attorney can review your case to determine if any of the following defenses apply:
- The traffic stop was unlawful – Before law enforcement has the right to stop you for a traffic stop, the officer must have reasonable suspicion that you have broken a law or violated a traffic offense. If your lawyer can show the officer did not have reasonable grounds to stop you, any resulting investigation or arrest may have been unlawful.
- You were not arrested – Oklahoma’s implied consent law only applies after an arrest has been made. If law enforcement asked you to take a test before an arrest and you refused, this is not a violation of Oklahoma’s implied consent law.
- Specimen was illegally obtained – If a law enforcement officer forced you to take the test without a warrant, the illegal specimen should not be used as evidence against you.
- You have a disability – If you have a disability or are incapable of submitting to a test, this could be a valid basis for a refusal.
- You requested a separate test – If you asked for a separate test and law enforcement refused to provide it to you, this could invalidate law enforcement’s test against you.
Your criminal defense lawyer can tailor an individual defense strategy based on the details of your case that gives you the best chance of obtaining a favorable outcome.
How to Challenge a License Suspension After Refusing a Test
If you want to avoid your license being suspended, you must act promptly. You must request an administrative license hearing with the Oklahoma Department of Public Safety (DPS) within 30 days of your arrest. If you don’t request the hearing, your driver’s license will be automatically suspended, and you’ll forfeit the right to have this hearing.
At the hearing, your criminal defense lawyer would have to show that the prosecution could not meet its burden of proof.
What to Do If You Refused a Breathalyzer in Oklahoma
If you refused a breathalyzer test in Oklahoma, you should contact an experienced criminal defense attorney for help. We focus on providing aggressive criminal defense in the OKC metro area. Because we focus exclusively on criminal law, we have the knowledge and experience necessary to secure favorable results.
Fassio Law provides criminal defense services in Mustang, El Reno, Edmond, Yukon, Norman, Oklahoma City, and surrounding areas. Call us today or contact us online to arrange a confidential consultation.
Related: Can You Keep Your License After a DUI Arrest in Oklahoma? Here’s How
How to Get a Hardship or Modified Driver’s License After a DUI in Oklahoma
