Louisiana DWI/DUI: Refusal to Take a Blood, Breath or Urine Test

In Louisiana, if you get pulled over for a DWI 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

Louisiana law requires you to take a breath, blood, or urine test if you are arrested for a DWI. Louisiana’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 or boating while intoxicated, then you consent to taking a chemical test of your blood, breath or urine for the purpose of determining your blood alcohol content (BAC). Incidentally, you are not supposed to drive a train in Louisiana while intoxicated either, and if you do, then you consent to a chemical test then, too. The officer gets to choose which test you take, and the test must be taken as soon as possible from when you were driving.

You could be arrested for a DWI even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. Generally, actual, physical control means that the driver is in the car and could make it move. Even if the driver is asleep when the officer arrives on the scene, the potential that he or she could wake up and drive has been enough for a Louisiana court to decide that the driver had actual physical control. (To read an example of actual, physical control, see the case State v. Sims, 426 So. 2nd148 (1983). You may need to go to a Louisiana law library to find this case.)

You can read Louisiana’s implied consent law in the Louisiana Revised Statutes Annotated 32:661.1 and 32:666.

Refusing to Take the Test

 

1st Offense

2nd Offense

3rd Offense

Refusal to take test

6 month license revocation

6 month license revocation

2 days minimum jail term

Once you are arrested, the officer must tell you your rights and the consequences you face if you refuse the test. You have constitutional rights under Miranda v. Arizona 384 U.S. 436 (1966) – in a nutshell, those rights are 1) to remain silent; 2) that anything you say can be used against you in court; 3) to have an attorney represent you; or 4) to have the court appoint an attorney if you can’t afford one. The officer must explain that your license will be suspended either if you refuse to take a test, or if you take one and your results show your BAC is at .08% or above. Also, the officer has to give you his or her name and agency. If there were any other officers present, then you can have their names and agencies too. All of this information must be included on a form that the officer reads to you and afterward, asks you to sign.

In Louisiana, you will lose your license for one year for your first refusal. For your second and any subsequent refusal, your license will be suspended for two years. If you have refused two or more times previously, however, or if you have been involved in an accident where there was serious injury or death, then the state can force you to take a test and you still face the suspension as well as fines from $300 to $1,000 and even time in jail.

You can read the penalties for refusal in the Louisiana Revised Statutes Annotated 32:666 and 32:667.

Should You Refuse to Take a Mandatory DWI Test in Louisiana?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DWI. In Louisiana, the consequences for refusal are milder than those for a DWI, if you were not involved in an accident that caused serious injury or death or if this is only your first or second refusal. If you are convicted of a DWI, then you face fines and jail time. Refusing the test does not guarantee that you won’t be convicted – you can still be found guilty of a DWI 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 DWI.

(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 DWI

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

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