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I refused to take the Breathalyzer. What will happen to my driver’s license?

You should be issued a 30-day temporary license. Next, you should contact an attorney immediately so he can request an administrative hearing in an attempt to get your license back. (You only get 30 days from the date of arrest for this request). If a hearing is held, and the administrative law judge determines a list of prerequisites existed, you could lose your license for one year.  See the video for more answers about a Louisiana Hardship License.

Refused breathalyzer

Penalties for Refusal of Breathalyzer in Louisiana

First refusal: one-year suspension

Second refusal within ten years: two-year suspension

Penalties for Being Over the Limit

First Submission over the limit: 90 days suspension

Second submission over the limit in last 5 years: one-year suspension

BAC .15 or above: 48 hours jail on first conviction, 96 hours jail time on second conviction

BAC .20 or more: 2 years license suspension for first conviction or 4 years suspension for second conviction

Penalties Underage DWI

BAC .02 or above but less than .20: 180 days license suspension

Commercial Driver’s License (CDL) Penalties

Refusal or BAC .04 while operating a commercial vehicle or .08 or above operating non-commercial vehicle: one-year suspension

If vehicle operated was transporting hazardous material: 3-year disqualification

Second refusal or over .04 BAC while operating a commercial vehicle or .08 non-commercial vehicle: disqualified for life

What is the Breathalyzer?

Before we begin, it would be nice to know the meaning of a Breathalyzer. A Breathalyzer is a device that is used to check the level of an individual blood alcohol content “BAC” as a result of the sample gotten from an individual’s breath. For chemical purposes there is a series of reaction that occurs when an individual exhales into a breathalyzer, it takes out the ethanol present in their breath and oxidizes it to acetic acid: CH3CH2OH(g) + H2O(l) – CH3CO2H + 4H + 4e-.

It is necessary for all law enforcement to use a blood alcohol tester in the USA and has been approved by the National Highway Traffic Safety Administration. There is a new development of distributing public breathalyzer in other forms for citizens to be able to test themselves; there are also licensed events that use BACs like pubs, weddings, charity, etc. There are also some other methods used for breath testing device using chemical analysis which sometimes tend to give false readings. The Intoxilyzer 9000 is the certified machine most commonly used by Louisiana police officers in DWI breathalyzer tests.

(PAS) Preliminary Alcohol Screening test or Preliminary Breath Test (PBT)

These form of tests use a small hand-held breathalyzer, these devices use numerical BAC readings, in some cases the device could pass or fail, in countries like Canada “Alcohol Screening Device (ASDs)” are used to measure level of alcohol content in the body so that, from 0 to 49mg% it shows digits, from 50 to 99 mg% it shows “WARN”, from 100 and above shows “FAIL”. These breath tests are sometimes categorized as part of the Field Sobriety Test (FST).

I refused to take the Breathalyzer

There are serious consequences that occur if you refuse to take a breathalyzer test, let’s take a scenario on the road, where a police officer halts your car, asks you for your license and registration, and realize you are acting funny and believes you are intoxicated, and you refuse to submit your Blood Alcohol Concentration, your license may be suspended or in worst cases face a jail sentence. You should be given a 30 day temporary license, it is also advisable to contact your attorney in order for your attorney to get you an administrative hearing to try to get your license back. Usually, there are attorneys or law firms that can accept your case to fight a DUI (Driving under influence) or DWI (Driving while intoxicated), for example, Carl Barkemeyer, Criminal Defense Attorney. But passing or refusing a breathalyzer test won’t always get you out of a DUI.

You may still be placed under arrest on that spot, but refusing to take a Breathalyzer test could hurt your ability to drive. The prosecutor may still have a case on a DUI/DWI charge that was collected as evidence like witness statement, the official statement, or a field sobriety test. There is also a difference between refusing to take a Breathalyzer and refusing to take the test in a station or a hospital.

Breathalyzer sensors

Infrared spectroscopy

This type of Breathalyzer basically allows a high degree of ethanol; the instrument used in Police stations will work based on the principle of the infrared spectroscopy.

Fuel cell

In a fuel cell gas sensor produces an amount of alcohol in the system proportional to the current produced, it usually requires a calibration every 6 months, these sensors are the ones you mainly see used on the roadside devices.


A semiconductor sensor increases in the conductance of tin oxide layers in the presence of a vaporized ethanol, but their stability is not as reliable as that of a fuel cell instrument.

Products that can interfere with the testing

Alcohol content products tend to affect breath machines such as body spray or mouthwash, take for example mouthwash like Listerine contains 27% alcohol. This can affect the machine and make it think that the amount of that substance left in the lungs rather than straight from the mouth. It gives a ratio of 2100:1 in blood concentration, which could lead to a high test reading that could be false.

Implied Consent Laws

There are various states that can decide to suspend your driver’s license or face jail time for not submitting a BAC test if suspected for a DUI. Therefore, it is required for you to have a BAC test in exchange for your driver’s license privileges; in other words, you will forfeit your driving privileges if you refuse a Breathalyzer.  Louisiana has an implied consent law that requires you to take chemical tests for intoxication or else you can lose your driving privileges in Louisiana.

“No Refusal” Enforcement

This is a law that can force suspects who refuse to take a Breathalyzer to be tested under the authority of a search warrant. Now, there are ways whereby law enforcements provide an E-warrant from their mobile devices, due to instances where suspects sober up before any physical warrants are obtained.

About half of all the states use the “No Refusal” law, but not all states actively use them; the best advice is to actually know the laws of your state for more details, using these warrant BAC test could force law enforcement to forcefully draw blood for the test.

Attending the administrative hearing is not compulsory

The necessity of coming may not be mandatory, the administrative law judge can’t force you to attend, and if it comes to the case, we can defend against it on our own so you do not need to miss work or school. Also, an attorney is not necessary, but you are advised to get one if you are serious about protecting your record and ability to drive.

Talk to a DWI Attorney

Carl Barkemeyer wrote the book on DWI: Practical Information for the Accused and Attorneys in Louisiana.

Like stated above you are required to contact your attorney prior to taking any chemical test. It is strongly recommended that you contact a Louisiana DUI attorney if you’ve been arrested for DUI. If you eventually escape the system without having been tested for BAC, you could likely to face serious consequences, like a long license suspension. Talk to a skillful attorney, such as Carl Barkemeyer, who will be able to answer any questions you may have about refusing a BAC test or defend you in court, if necessary. Contact us to discuss your DWI in Baton Rouge or elsewhere in Louisiana.


Louisiana DWI & Criminal Lawyers

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Louisiana criminal lawyers and DWI attorneys at the Barkemeyer Law Firm providing legal defense services for clients in Baton Rouge, Ascension, Livingston, Tangipahoa, Port Allen, Alexandria, New Orleans, Lafayette, Metairie, Kenner, Gretna, Hahnville, Chalmette, Slidell, St. Tammany, St. Charles, St. John, St. Bernard, Mandeville, Covington, Shreveport, Bossier, Jefferson, and all of Louisiana.

DISCLAIMER: The information on this website is not formal legal advice nor does it create an attorney-client relationship.

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