Constitutionality of a Suspended License After Refusing a Breathalyzer

Posted by James Ferguson | Jul 15, 2020 | 0 Comments

Mississippi and many other states have adopted a law that seeks to ensure that suspected DUI offenders will provide physical evidence to aid in their exoneration or conviction. When an individual is suspected of driving under the influence, a law enforcement officer will perform one or two tests to make the determination. The officer will utilize a field sobriety test and/or administer some form of chemical exam. One of the most commonly used exams is the breathalyzer test. This is favored because of its accessibility in the field and its accuracy in detecting blood alcohol content. A step up from the breathalyzer is a blood test, of which its collection can bring to bear serious constitutional issues.

Breathalyzer Refusal Law

In Mississippi, as in many other states, law enforcement officers are required to seek consent before taking a chemical test. If the subject refuses to take the test, the officer can give the person a “refusal suspension” of the subject's driver's license. In Mississippi, a person who refuses to take a chemical test after suspicion of DUI will receive an automatic 90-day suspension of their driver's license. This suspension is separate and apart from the driver's license suspension the person may receive if they are subsequently convicted of a DUI. Notably, a refusal to perform field sobriety testing does not carry the “refusal suspension.”

Is it Constitutional?

People of the general public who end up with a suspended license after refusing a breathalyzer often do not understand how and why the law permits it. The response is to fight against the change as though it was applied by a uniformed officer. However, to the surprise of these individuals, a refusal suspension is constitutional and legal. The basis of the refusal suspension is embedded in the implied consent laws of each given state. The implied consent law says that any person who refuses a chemical test is subject to an automatic penalty without prior knowledge of any such law. This is because the subject has impliedly consented to the chemical test due to their agreement to drive on public streets.

Defending a Breathalyzer Refusal Charge

In general, refusal to take a breathalyzer test is not admissible in court as a result of the prohibition against self-incrimination. Even still, some offenders do seek appeal in an attempt to have their licenses reinstated. Within 10 days of the suspended license, the party has the opportunity to file an appeal through a court proceeding. The hearing will take place before a judge who will decide the appeal after evidence is provided by the officer and the appealing party.

Let Us Help with Your DUI Case
If you believe you have received an unjust DUI refusal suspension, please call us now. Attorney James Robert Ferguson is a seasoned DUI attorney with experience in appealing in-court refusal charges. Contact us to determine your rights in the matter. We will provide a unique approach to help you with your case.

See related blog posts:
The Consequences of Refusing a Chemical Test
The Standard Field Sobriety Test

About the Author

James Ferguson

I was born and raised in Memphis, Tennessee. During college, I studied at East Tennessee State University, where I received a Bachelor's in Criminal Justice, which I then followed up with a Master's in Criminology from the University of Memphis. Before beginning my legal career, I worked as a Project Coordinator at the University of Memphis, where I assisted in training law enforcement officers in the Memphis Model of Crisis Intervention Training. The purpose of the project was to provide officers with the tools to deal with citizens in a state of mental crisis. I then went on to study law at the Mississippi College School of Law in Jackson. During law school, I clerked with Victor W. Carmody, Jr., the lawyer who wrote the book on DUI law in Mississippi. I am currently licensed to practice law in both Tennessee and Mississippi, and spend a majority of my time traveling the highways and biways of Mississippi defending those who have been charged with a DUI.


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