Refusing a Sobriety Test During a DUI Stop

Posted by James Ferguson | Apr 01, 2018 | 0 Comments

When drivers are arrested under suspicion of DUI in Mississippi, police officers have the authority to administer chemical tests to determine whether a crime is being committed. In Mississippi, a Blood Alcohol Content (BAC) of 0.08% or above qualifies as a DUI offense. Mississippi permits breath, urine, or blood tests to make this determination. When drivers are pulled over, police officers may assume implied consent if the officer has probable cause to believe that the driver has been driving under the influence. Probable cause is the Fourth Amendment standard that must be met before law enforcement officers can arrest, search a suspect, or issue a warrant.

Probable Cause and Implied Consent

Probable cause is defined as the presence of a reasonable basis to believe that a crime is being committed (in the case of an arrest) or when there is a presence of enough evidence of a crime to necessitate a search (in the case of a search warrant). During a stop of a suspected drunk driver, the officer will use evidence of excessive speeding, an inability to stabilize a vehicle, alcohol odors, speech patterns and evidence of opened bottles in sight. If the officer determines the presence of probable cause, he or she can assert implied consent to perform a chemical test to determine BAC. Implied consent occurs when an officer uses the surrounding circumstances that would lead a reasonable person to believe that consent was given. There is no need for the utterance of words or any non-verbal indicators for implied consent to arise in DUI situations. After the test is performed, the driver has the right to request additional tests by an independent medical doctor.

Penalties for Refusing a Test

Some driver opt to refuse these tests. When refusal occurs, a police officer cannot force the individual to submit to the test. At the same time, refusal can carry consequences. The penalty for refusing a test for a first offense is 90 days of suspended license. The second offense with a refusal also carries a penalty of 90 days of suspended license. In this case, if the first offense was a DUI conviction, then the penalty is increased to one year of suspended license. A third offense with a refusal carries one year suspended license if the first or second offense was a DUI conviction. A refusal also carries a fine of $250.00. Depending on the circumstances, jail time may also apply. In most instances, it is better to submit to the test than to refuse it. In fact, the penalties of refusing a test may become more severe than a conviction for DUI. Without a test, how will the driver know if he or she was below the legal limit?

You can Still Receive a Conviction

Refusing the test may not prevent conviction. If the the prosecutor has enough evidence to meet the statutory definition of a DUI conviction, then the court can find the defendant guilty even without a test. The prosecutor may also use the refusal as a basis of guilt. When pulled over by a police officer for suspicion of DUI, the wise course of action is to follow reasonable and lawful requests. Refusing to adhere to such requests may actually be more burdensome and can result in additional offenses.

DUI Attorney

Attorney James Robert Ferguson has been practicing as a DUI defense attorney for many years. He is well-versed in all aspects of DUI law in Mississippi. DUI offenses are serious. You should have a seasoned and trusted attorney by your side to fight on your behalf. Contact us for a consultation today.

See related blog posts:
Are Sobriety Check Points Legal in Mississippi?
Supreme Court: No DUI Blood Draws Without a Warrant or Consent

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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