1.4 BAC Test Refusal Penalties

All States have implied consent laws stipulating that people implicitly consent to be tested if they are suspected of impaired driving (Shinkle et al., 2019; NHTSA, 2017). However, some drivers refuse to provide breath or blood samples for BAC tests. Nationwide, an average of 24% of drivers arrested for DWI refuse BAC testing, although this figure ranges from 1% to 82% depending on the State (Jones & Nichols, 2012; Namuswe et al., 2014). A driver’s BAC is a critical piece of evidence in an alcohol-impaired-driving case. The absence of a BAC test can make it more difficult to convict the impaired driver.

All States have established separate penalties for BAC test refusal, typically involving administrative license revocation or suspension. If the penalties for refusal are less severe than the penalties for failing the test, many drivers will refuse. Therefore, the model DWI code sets a more severe penalty for test refusal than for test failure (NCUTLO, 2000).

Reduced test refusal rates will help the overall DWI control system by providing better BAC evidence. Having driver BACs may increase DWI and high-BAC DWI convictions, increase the likelihood prior DWI offenses will be properly identified, and give courts better evidence for offender alcohol assessment. For a thorough discussion of issues related to BAC test refusal, see NHTSA’s Refusal of Intoxication Testing: A Report to Congress (Berning et al., 2008). See also Voas et al. (2009) for a history of implied consent laws in the United States and a review of the research on breath test refusal.

Use: The penalties in each State for failing or refusing a BAC test cannot be categorized in a straightforward manner due to the complexity of State alcohol-impaired-driving laws and the differences in how these laws are prosecuted and adjudicated. All States except Wyoming impose administrative sanctions for test refusal (NHTSA, 2017). See NHTSA’s Digest of Impaired Driving and Selected Beverage Control Laws, 30th Edition, Current as of December 31, 2015, for more detail on each State’s laws (NHTSA, 2017).

The U.S. Supreme Court decision Birchfield v. North Dakota upheld the ability of States to criminalize refusal for breath testing, but not for warrantless blood tests. The implications of the Birchfield decision are described in more detail in Lemons and Birst (2016). The U.S. Supreme Court decision Mitchell v. Wisconsin (2019) ruled that police may order a blood draw from an unconscious person suspected of impaired driving without a warrant.

Effectiveness: Zwicker et al. (2005) found that test refusal rates appear to be lower in States where the consequences of test refusal are greater than the consequences of test failure. No study has examined whether stronger test refusal penalties are associated with reduced alcohol-impaired crashes.

Costs: The cost for BAC test refusal penalties depends on the number of offenders detected and the fines and other penalties applied to them.

Time to implement: Increased BAC test refusal penalties can be implemented as soon as appropriate legislation is enacted.

Other issues:

• Criminalizing test refusal: As of June 2018 BAC test refusal was a criminal offense in at least 12 States (NCSL, 2018). Criminalizing test refusal may reduce refusal rates and increase the likelihood of convictions for DWI (Jones & Nichols, 2012). It also ensures the drivers will be identified as repeat offenders upon subsequent arrests.
• Warrants: To reduce breath test refusals and increase the number of drivers successfully prosecuted for DWI, some States issue warrants for drivers who refuse breath tests. Issued by a judge or magistrate, the warrant requires the driver to provide a blood sample, by force if necessary. One study reviewed how warrants are used in Arizona, Michigan, Oregon, and Utah (Hedlund & Beirness, 2007), which found that warrants may successfully reduce breath test refusals and result in more pleas, fewer trials, and more convictions. Although warrants require additional time for law enforcement, officers report the chemical evidence obtained from the warrant are of great value and worth the effort to obtain (Haire et al., 2011). Note that following the Birchfield v. North Dakota Supreme Court decision, warrants are required for blood tests un­less there are exigent circumstances (see Lemons & Birst, 2016) as was decided in the Mitchell v. Wisconsin (2019) Supreme Court decision.

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