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

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

Implied Consent

Utah law requires you to take a blood, breath, or urine test, or a test of “oral fluids” – saliva – if you are arrested for a DUI. Utah'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, breath, urine, or saliva for the purpose of determining your blood alcohol content (BAC).  The test must be taken as soon as possible from when you were last driving and the officer gets to choose which test you take.

In fact, the officer could ask you to take more than one test. You have to take all of the tests the officer asks for, unless you want to face penalties for refusal. If you submit to the officer's test or tests, then you have the right to have additional tests taken by a medical professional of your choice. You do not have the right to speak to an attorney before deciding to take the tests.

You could be arrested for a DUI even if you are not driving. If you have actual, physical control of a 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 vehicle and could make it move. In Utah, however, you could be convicted of a DUI even if you had no intention of making the vehicle move. Having the potential ability to do so – even if you are asleep in a parked car when the officer finds you – can satisfy the meaning of actual physical control. (To read more about this, see the case State v. Barnhart 850 P.2d 473 (1993)).

You can read Utah’s implied consent law in the Utah Code Annotated 41-6a-520.

Refusing to Take the Test

 

1st Offense

2d Offense

3rd Offense

Refusal to take test

18 month license suspension

3 year license suspension

3 year license suspension

Once you are arrested, the officer should warn you of the penalties for refusing a chemical test. If you refuse, your license will be revoked. Also, depending on your driving history, you could be prohibited from driving while there is any measurable amount of alcohol in your system for five to ten years. Additionally, you might have to drive with an ignition interlock device on your car for three years.

After you have been warned, you must tell the officer if you will submit to a test. If you refuse, then the officer will take your license immediately. In its place, you will get a temporary permit that is good for 29 days and information on how to request a hearing to challenge your suspension. At the hearing, you will have to prove that the officer's belief that you were driving under the influence was not reasonable or that you actually consented to the test. If you fail to do so, or if you simply do not ask for a hearing, then your license will be suspended for 18 months if this is your first refusal. For your second or any subsequent refusal within ten years, or if you have had a prior DUI conviction within ten years, your license will be suspended for three years.  

The consequences of refusal are found in the Utah Code Annotated 41-6a-521.

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

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in Utah, the penalties are steep. You must go to jail for 48 hours, pay a fine of $700, submit to home confinement with electronic monitoring, do community service, participate in a drug or alcohol assessment, and perhaps complete treatment for substance abuse.

This is more severe than an 18-month-long driving suspension for refusal. 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 Utah 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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