As part of a DUI investigation, an officer will normally ask the driver to take a breath or blood alcohol test to determine the amount of alcohol or drugs in the driver’s system. The driver’s drug or blood alcohol concentration (BAC) is often used to prove a DUI in court.
This article gives an overview of what constitutes a lawful test request and the consequences of an unlawful refusal.
Under Mississippi law, any person who operates a vehicle within the state is deemed to have given his or her “implied consent” to chemical testing of breath, blood, or urine to determine the presence of alcohol or other impairing substances. However, to require testing, an officer must have probable cause to believe the person was in actual physical control of a vehicle while under the influence of an intoxicating liquor or other impairing substances.
Refusal of a lawfully requested breath, blood, or urine test will result in driver’s license suspension. Upon refusal, the officer is supposed to certify that the driver has refused, seize the driver’s license, issue a receipt to the driver for the seized license, and forward the certificate of refusal to the Commissioner of Public Safety. The commissioner will then suspend the driver’s license for 90 days or for one year if the driver has any prior DUI convictions. This suspension will be added to any suspension incurred from a DUI conviction.
IID license. In criminal proceedings, the accused is permitted to request an ignition interlock license in order to have limited driving privileges during the suspension period. This restricted license permits the holder to drive while under a suspension for test refusal.
Evidence of guilt. A driver may be tempted to refuse evidentiary testing with the hope of limiting the available evidence for a DUI prosecution. However, the fact that a driver refused testing is normally admissible at trial to show a consciousness of guilt. In other words, the prosecutor can tell the jury about the refusal and argue the defendant refused testing to hide intoxication.
A license suspension due to a test refusal can be challenged. However, the licensee must request a hearing within ten days of the refusal suspension notice.