Alaska OUI: Refusal to Take a Blood, Breath or Urine Test

In Alaska, if you get pulled over for an OUI (operating a vehicle under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Alaska law requires you to take a breath or blood test if you are arrested for an OUI. Alaska’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving, boating, or flying under the influence of alcohol or drugs, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC). If you are involved in an accident while driving, boating, or flying that causes death or serious injury, then you also consent to a urine test.

Additionally, Alaska’s implied consent law says that you consent to taking a preliminary breath test, even if you have not been arrested. An officer may administer a preliminary breath test if you are involved in an accident, break a traffic law, or have an open container of alcohol where you or passengers could drink it, with a few exceptions. For example, it’s okay to have a drink in the back of a limousine. Refusing this preliminary test probably won’t work in your favor because if you refuse the preliminary breath test and then the officer arrests you, you will still be required to take a breath or blood test under the law described in the paragraph above.

If you are arrested, the officer should tell you that if you refuse to take the test, you could lose your license or the privilege to get one if you don’t have a license already, that your refusal could be used against you in court, and that the refusal is a crime punishable by both jail time and heavy fines.

You can read Alaska’s implied consent law in the Alaska Statute 28.35.031. For the open container law, see Alaska Statute 28.35.029.

Refusing to Take the Test

 

1st Offense

2nd Offense

3rd Offense

Refusal to take test

3 days jail; mandatory ignition interlock device; fines up to $1,500

20 days jail; mandatory ignition interlock device; fines up to $3,000

60 days jail; mandatory ignition interlock device; fines up to $4,000

In Alaska, the penalties for refusing to take a blood, breath, or urine test begin with at least three days in jail and a fine of $1,500 or more for your first refusal. Any subsequent refusal follows the same increase in jail time and fines as those imposed for an OUI. The court also will revoke your license or prevent you from getting one, it could order you to take a drug to prevent alcohol consumption, and it could take your vehicle away.

The penalties for refusing to submit to a chemical test are found under section (g) of Alaska Statute 28.35.032.

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so.  However, if the incident that caused you to be arrested also caused injury to yourself or another person, the state can force you to take the test. Also, the state may administer the test if you are unconscious, even if you haven’t yet been arrested. You can read this law in Alaska Statute 28.35.35.

Timing of the Test and Penalties of an OUI

The blood, breath, or urine test must be taken within four hours of when you were operating your car, boat, or plane. A result of .08% or more is enough for a court to convict you of an OUI. If this is your first OUI, then you face at least three days in jail and $1,500 or more in fines. For your second offense, the jail time increases to at least 20 days and fines of $3,000 or more. For your third, the punishment jumps to at least 60 days in jail and fines of $4,000 or more. Even if this is your first OUI, the court will also revoke your license or prevent you from getting one. The court may require that you take a drug to prevent you from drinking alcohol, and it may also require an ignition interlock device. The court could even take your car, boat, or plane away, permanently.

You can read Alaska’s OUI law in Alaska Statue 28.35.030. For more on forfeiture of vehicles, see Alaska Statute 28.35.036.

Should You Refuse to Take a Mandatory OUI Test in Alaska?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for an OUI.  In Alaska, the consequences of refusal are nearly identical to those of the OUI. The only difference is that the court could reduce your fine for the OUI by the cost of your ignition interlock device. Refusing the test does not guarantee that you won’t be convicted – you can still be found guilty of an OUI even if your refusal means that the state does not have proof that your BAC was over .08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of OUI.

(Check out our blood alcohol content chart for an estimate of how many drinks it takes to get to the legal limit.)

Get Help With Your OUI

If you have been arrested on an OUI charge in Alaska or any other state, get help from an experienced OUI attorney.  Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for an OUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent OUI. To avoid or reduce the consequences, your best bet is to find an attorney who knowledgeable about your state’s laws and about how the system works in your county’s court.

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