Oklahoma DUI: Refusal to Take a Blood, Breath, Saliva, or Urine Test

In Oklahoma, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood, breath, saliva, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Oklahoma law requires you to take a blood, breath, saliva, or urine test if you are arrested for a DUI. Oklahoma’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 under the influence, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC), or a test of your saliva or urine to check for drugs.  The test must be taken within two hours of driving and you cannot refuse the test without penalty.

Even if you are not driving, you could be arrested and asked to take a chemical test for a related charge, actual physical control (APC). Generally, actual, physical control means that the driver is in the vehicle and could move it, even though he might not be trying to move it when the officer finds him. In Oklahoma, an APC usually involves a driver who realizes he is too drunk to drive and pulls over to sleep it off. An officer finds the driver in the parked car, wakes him up, smells alcohol on his breath, and arrests him. Although the driver was asleep, the law assumes that he could have awoken at any time and driven while still drunk. The state treats this potential threat to public safety the same as DUIs under the implied consent law. It punishes an APC the same as a DUI, too. (You can read more about APC in the case Hughes v. State 535 P.2d 1035 (1975).

You can read Oklahoma’s implied consent law in the Oklahoma Statutes Annotated 47-751.

Refusing to Take the Test

 

1st Offense

2d Offense

3rd Offense

Refusal to take test

6 month license revocation and 18 month interlock

1 year license revocation

3 year license revocation

After you are arrested, the officer should tell you that you will lose your license if you refuse to take a test. Once you do refuse, the officer cannot make you take one unless you were involved in an accident where someone was seriously injured or killed. Also, if you were killed or become unconscious due to an accident, then the officer does not need to ask you before ordering a test. .

For your first refusal, your license will be suspended for six months unless you also have a previous DUI or APC conviction. If you do, then it will count as if this were your second refusal, which is punished by a one-year suspension. For your third refusal (or for any combination of refusals and prior convictions that amounts to three or more), the penalty is a three-year suspension. Refusal also results in 18-month ignition interlock requirement.

Should You Refuse to Take a Mandatory DUI Test in Oklahoma?

It usually does not help you to refuse to take a blood, breath, saliva, or urine test when you are arrested. For a first DUI in Oklahoma, you will go to jail for at least ten days, be fined up to $1,000, and will have to participate in an assessment program for substance abuse. This is more severe than having your license suspended. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI 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 DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Oklahoma or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. 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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