Can You Refuse a Breathalyzer Test in Louisiana?

Disclaimer: This article talks about Louisiana’s breathalyzer laws in general and is not legal advice. Every DUI or DWI case is different and needs its own legal analysis. If you are being charged with a DUI or have questions about your case, you should talk to a licensed Louisiana DUI defense lawyer.

---

You are driving home after dinner with friends. Blue lights flash in your rearview mirror. The officer asks you to step out of the vehicle and blow into a small device: a breathalyzer. Your heart races. Your mind spins.

Can I refuse this test? Should I refuse it?

These questions race through thousands of Louisiana drivers’ minds every year. The answer is not simple, and the consequences of your decision could impact your license, your job, and your freedom.

What is a Breathalyzer Test in Louisiana?

A breathalyzer is a device that estimates your blood alcohol concentration (BAC) by analyzing a sample of your breath.

Law enforcement officers use these portable machines during traffic stops to determine if drivers are intoxicated.

In Louisiana, you are considered legally impaired if your BAC is:

• 0.08% or higher for drivers 21 and over
• 0.02% or higher for drivers under 21, 0.04% or higher for commercial drivers (missing bullet point)

Better version: In Louisiana, you are considered legally impaired if your BAC is:

• 0.08% or higher for drivers 21 and over
• 0.02% or higher for drivers under 21 (zero-tolerance)
• 0.04% or higher for commercial drivers operating commercial vehicles
  • Note: CDL holders in personal vehicles face the 0.08% limit, but can lose their CDL for any DWI conviction

Officers typically request a breathalyzer test when they observe signs of impairment such as slurred speech, bloodshot eyes, the smell of alcohol, or failed field sobriety tests.

Implied Consent Law in Louisiana

Louisiana’s implied consent law (Louisiana Revised Statutes RS 32:661) states that by operating a vehicle on Louisiana roads, you have automatically consented to submit to chemical tests (breath, blood, or urine) if a law enforcement officer has reasonable grounds to believe you are driving while intoxicated.

---

Can You Refuse a Breathalyzer Test in Louisiana?

Legal Right to Refuse

The answer depends on your situation.

Most drivers, most of the time: Yes, you can refuse, but with severe consequences.

You CANNOT refuse if:

• You have two prior testing refusals, OR
• The incident involved a death, OR
• The incident caused serious bodily injury

In these situations, refusal itself is a criminal offense with mandatory penalties.

What “Refusing” Really Means

Louisiana law does not allow police to physically force you to blow into a breathalyzer, and they cannot get a warrant to make you blow. You have the physical ability to say “no.”

But officers can obtain a search warrant for a blood test. With a warrant, medical personnel can draw your blood, by force if necessary.

So refusing a breathalyzer doesn’t mean refusing all testing. It just shifts the method from breath to blood.

Immediate Consequences of Refusal:

• Automatic license suspension (180 days to 1 year for first refusal)
• Two-year total ignition interlock requirement (one-year suspension + one additional year for reinstatement) 
• Your refusal can be used against you in court as evidence of guilt
• Officers will likely obtain a warrant for blood testing anyway
• Potential criminal charges if you’ve refused twice before

Yes, you physically can refuse a breathalyzer in most situations. But “can” does not mean “should.”

Immediate Administrative Consequences of Refusing a Breathalyzer

When you refuse a breathalyzer in Louisiana, the penalties kick in immediately under Title 32 (Louisiana’s traffic and vehicle laws).

• First refusal: ONE YEAR suspension
• Second refusal (within 10 years of first): TWO YEARS suspension
• Third or subsequent refusal (within 10 years): TWO YEARS suspension
  • PLUS criminal charges if you have two prior refusals (fines $300-$1,000 and jail 10 days to 6 months)

In cases involving fatalities or serious bodily injury, first or second refusal suspensions are imposed WITHOUT eligibility for a hardship license.

Financial Penalties:

• Reinstatement fee: $50 (not $300)
• Additional costs:
  • Ignition interlock device installation and monitoring fees (as of July 2024, required for reinstatement)
  • SR-22 insurance filing
  • Potential insurance premium increases (or policy cancellation)

Immediate Actions by Officer:

• Officer seizes your physical license on the spot
• You receive a temporary 30-day driving permit
• You have 30 days to request an administrative hearing to challenge the suspension
  • If you don’t request a hearing within 30 days, the suspension becomes final automatically

These are administrative penalties. Meaning they happen through the Louisiana Office of Motor Vehicles (OMV), separate from any criminal court proceedings. However, if you refuse after having two prior refusals, you will face both administrative and criminal penalties.

Critical Deadlines:

• 30 days to request an administrative hearing (or suspension becomes automatic)
• 30 days of driving on a temporary permit before suspension begins

Criminal Consequences Under Title 14

Refusing the breathalyzer doesn’t stop the criminal DWI case from moving forward.

Under Title 14 (Louisiana’s criminal code), prosecutors can still charge you with DWI based on other evidence:

• The officer’s observations of your behavior
• Failed field sobriety tests
• Witness statements
• Your admission to drinking
• Video evidence from a dashcam or a body camera

Additionally, your refusal itself can be introduced as evidence in criminal court. Prosecutors will argue, “If they weren’t drunk, why didn’t they just take the test?”

What Happens If You are a Repeat Offender?

Second Refusal (within 10 years of first):

• License suspension extends to two years (not “up to” – it’s a mandatory 2 years)
• Mandatory ignition interlock device required for reinstatement
• Ignition interlock must remain for the entire suspension period, plus additional time asa  reinstatement condition

Third Refusal (with two prior refusals)

• Administrative suspension: two years (same as second refusal)
• PLUS criminal charges for the refusal itself:
  • Fines: $300-$1,000
  • Jail time: 10 days to 6 months
  • This is a separate criminal offense from any DWI charge
• Ignition interlock device required for reinstatement
• You may still face separate DWI charges if there’s evidence of intoxication

After two prior refusals, Louisiana law says you “may not refuse” to submit to testing. If you refuse anyway, it becomes a criminal offense.

How Refusal Affects Your DWI Case

Prosecutors can and do use your refusal as evidence in DWI trials, arguing that you refused testing to hide intoxication.

While this does not automatically result in harsher criminal sentencing by statute, your refusal:

• Can be presented to the jury as consciousness of guilt
• Gives prosecutors additional ammunition against you
• May influence how judges view your case
• Weakens potential defense strategies

By your third refusal, you are facing:

• 2 years without a license
• Criminal prosecution just for refusing (separate from DWI)
• Mandatory ignition interlock for years after reinstatement
• Your refusal being used against you in any DWI prosecution

The penalties do not escalate to three years, but adding criminal charges to the mix makes third refusals substantially worse than second refusals.

---

Why Would Someone Refuse a Breathalyzer Test in Louisiana?

Lack of Legal Knowledge

Most refusals happen because drivers simply don’t understand what they’re getting into.

They think:

• “If I don’t give them evidence, they can’t convict me.”
• “Refusing is better than failing the test.”
• “They’ll just let me go.”

These misconceptions lead to decisions that make bad situations worse.

Fear of DUI Conviction

Some drivers refuse because they know they have been drinking and fear that a failed breathalyzer will seal their fate. The logic makes sense on the surface: Do not give them the evidence they need.

Refusal does not prevent DUI charges. It just changes the nature of the evidence prosecutors will use. And it adds the administrative license suspension on top of whatever criminal penalties you might face.

Medical or Personal Concerns

Legitimate reasons do exist.

Some people have:

• Respiratory conditions that make it difficult to provide an adequate breath sample
• Anxiety about the procedure
• Concerns about the accuracy of roadside tests

If you have a genuine medical condition, communicate it clearly to the officer. They may offer alternative testing methods like blood or urine tests.

---

The Role of a Criminal Defense Attorney

A Louisiana DUI attorney can challenge your case even after you have refused the breathalyzer by:

• Questioning the legality of the traffic stop: If the officer did not have reasonable suspicion to pull you over, everything that followed could be suppressed
• Challenging field sobriety test procedures: These tests are subjective and often improperly administered
• Examining officer conduct: Was the implied consent warning properly given? Did the officer coerce your refusal?
• Presenting alternative explanations: Medical conditions, fatigue, or nervousness can mimic signs of intoxication.

---

Alternatives to a Breathalyzer Test in Louisiana

Blood and Urine Tests

If you refuse, officers will pursue blood or urine testing instead. Under Louisiana’s implied consent law, you have already agreed to all chemical tests (not just breathalyzers).

• Officers obtain search warrants for blood draws (often within minutes via electronic “no refusal” systems)
• With a warrant, they can use force to draw your blood
• Blood tests are more accurate than breathalyzers
• Lab results take days or weeks, not minutes

Refusing blood or urine tests triggers the same penalties as refusing a breathalyzer. One-year suspension for your first refusal.

The Time Delay Strategy

Some drivers refuse roadside breathalyzers, hoping to buy time at the station, letting their BAC drop naturally. Prosecutors use retrograde extrapolation, a mathematical formula estimating your BAC at the time of driving, not at the time of the testing.

---

Steps to Take If You Are Stopped for DUI in Louisiana

What to Do During the Stop

Stay calm and respectful. Anything you say or do will be recorded and can be used in court. Arguing, becoming combative, or showing attitude will only hurt your case.

• You have the right to remain silent beyond providing license, registration, and insurance
• You have the right to an attorney (though not immediately at the roadside)
• You can politely decline field sobriety tests (these are voluntary, unlike the breathalyzer)

---

Can You Challenge the Refusal Penalty in Louisiana?

Administrative Hearing Process

Yes, but the clock starts ticking immediately.

From the moment of your arrest, you have exactly 30 days to request an administrative hearing with the Louisiana Office of Motor Vehicles (OMV).

Exception: If you were hospitalized, incarcerated, or had another acceptable reason preventing your request, you may have up to 90 days. But you will need documentation proving why you could not act within 30 days.

How to Request Your Hearing

Submit a written request to:

• Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles
• In person at your local OMV office
• By mail to: P.O. Box 64886, Baton Rouge, LA 70896

Possible Defenses Against Refusal Penalties

• Improper Traffic Stop: If the officer did not have reasonable suspicion to pull you over, the entire DWI investigation (including your refusal) could be thrown out.
• Medical Conditions: Documented respiratory conditions, certain medications, or medical procedures might provide a valid reason for refusing or being unable to complete the test.
• Coerced Refusal: If the officer pressured you into refusing through threats or misleading statements, this could be grounds for challenging the penalties.

---

Get the Legal Help You Need—Fast

If you’ve been arrested for DWI in Louisiana—whether you refused the breathalyzer or not—the clock is already ticking on your license and your case.

Chad Ikerd has defended over 1,000 clients facing criminal charges across Louisiana. With 14+ years of experience and deep knowledge of Louisiana’s DUI laws, he knows how to challenge evidence, protect your rights, and fight for the best possible outcome.

Chad focuses on OWI defense and is a member of OWI defense lawyer organizations, including the National College of DUI Defense (NCDD) attorneys, which offers special training in OWI and forensic defense strategy.

Do not wait. Your administrative hearing deadline is just 30 days away, and evidence in your favor can disappear quickly.

Call us today at the Ikerd Law Firm for a consultation.

Past results do not guarantee future outcomes. This article is for informational purposes only and does not constitute legal advice or create an attorney-client relationship.