DOT HS 809 876

July 2005
This publication is distributed by the U.S. Department of Transportation, National Highway Traffic Safety 

Administration, in the interest of information exchange. The opinions, findings and conclusions expressed 

in this publication are those of the author(s) and not necessarily those of the Department of Transportation 

or the National Highway Traffic Safety Administration. The United States Government assumes no liability 

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 i 

Technical Report Documentation Page

1. Report No. 

DOT HS 809 876 

2. Government Accession No. 3. Recipient's Catalog No. 

5. Report Date 

 August 2005

4. Title and Subtitle 

Breath Test Refusals in DWI Enforcement: An Interim Report 6. Performing Organization Code 

7. Author(s) 

 T.J. Zwicker, J. Hedlund, and V.S. Northrup 

8. Performing Organization Report No. 

9. Performing Organization Name and Address 

 Preusser Research Group, Inc. 

10. Work Unit No. (TRAIS) 

 7100 Main Street 

 Trumbull, CT 06611

11. Contract or Grant No. 

DTNH22-98-D-45079 

Task Order 11 

13. Type of Report and Period Covered 

 Interim Report 

 October 2002 – April 2004

12. Sponsoring Agency Name and Address 

 U.S. Department of Transportation 

 National Highway Traffic Safety Administration 

 Office of Research and Technology 

 400 Seventh Street, SW. 

 Washington, DC 20590 

14. Sponsoring Agency Code 

15. Supplementary Notes 

The Contracting Officer's Technical Representative for this project was Amy Berning. 

16. Abstract 

Breath test refusal rates nationwide have remained stable at about one-quarter of all drivers arrested for 

DWI from 1996 to 2001. States with statistically significant changes in refusal rates are split evenly between 

those with increases and those with decreases. In five case-study States, first-time offenders generally constitute 

the majority of those arrested for DWI and a majority of those refusing the breath test, even in those States 

where it is to their advantage to take the test. First-time offenders often do not understand the consequences of 

taking or refusing the test. In many States, repeat offenders refuse the test more frequently than first-time 

offenders. In all 5 case-study States, consequences of refusal are less for repeat offenders than the consequences 

of taking and failing the test. In Connecticut and Maryland, submitting to the breath test is usually beneficial for 

first-time offenders. The report discusses possible strategies States and jurisdictions can implement to decrease 

breath test refusals. 

17. Key Words 

 Alcohol Impaired-driving countermeasures 

 Breath test refusal Administrative sanctions 

 DWI BAC testing 

 DWI Enforcement

18. Distribution Statement Document is available through the 

National Technical Information Service 

Springfield, VA 22161 and free of charge at 

www.nhtsa.dot.gov

19. Security Classif. (of this report) 

 Unclassified 

20. Security Classif. (of this page) 

 Unclassified 

21. No. of Pages 

 

22. Price 

Form DOT F 1700.7 (8-72) Reproduction of completed page authorized
 ii 
 iii 

DEPARTMENT OF TRANSPORTATION 

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION 

TECHNICAL SUMMARY 

CONTRACTOR 

 Preusser Research Group, Inc. 

CONTRACT NUMBER 

DTNH22-98-D-45079 

Task Order 11

REPORT TITLE 

 Breath Test Refusals in DWI Enforcement 

REPORT DATE 

 August 2005 

REPORT AUTHOR(S) 

 T.J. Zwicker, J. Hedlund, and V.S. Northrup 

 This is an interim report for the study titled “Determine Whether There Is an Increase 

in Breath Test Refusals and Develop and Evaluate a Promising Program to Deter Refusals.” 

The project is being conducted by Preusser Research Group under contract number 

DTNH22-98-D-45079 Task Order 11. 

Background 

The number of alcohol-related fatalities decreased 37 percent from 25,165 in 1982 to 

15,935 in 1998. However, recent numbers of alcohol-related fatalities for 2000 (16,653), 

2001 (17,400), 2002 (17,419), and 2003 (17,013) indicate that fatalities continue to exceed 

the numbers seen in the mid-1990’s. It appears that new initiatives are required to achieve 

additional reductions. 

New initiatives to achieve additional reductions in alcohol-related fatalities require an 

understanding of the problem and efforts to affect it so far. In two recent studies, researchers 

have identified States that achieved the largest reductions in alcohol-related fatalities from 

1982 to 1996 (Ulmer, Hedlund, and Preusser, under review) and examined the reductions as 

a function of driver age, with a particular emphasis on youth (Hedlund, Ulmer and Preusser, 

2000). It appears that stronger laws have been effective in reducing the number of people 

who choose to drink and drive, but some believe that these same laws have produced an 

unwanted consequence of higher breath test refusal rates in some States. Offenders receive 

implied consent penalties for refusal in most States, but refusals may help offenders avoid a 

DWI conviction, which carries more severe penalties. 

A reduction in the number of test refusals will increase the effectiveness of the 

administrative and criminal systems so offenders can no longer avoid penalties, may help to 

identify more problem drinkers, and may help identified problem drinkers get some help. 
 iv 

Objective 

The three goals of this study are (1) to document the extent of the breath test refusal 

problem, (2) to investigate the reasons for breath test refusals or lack of a significant 

percentage of refusals in selected States, and (3) to develop, implement, and evaluate 

effective and efficient countermeasures to deal with the problem. The first and second goals 

are covered in this report. A later report will detail the results of the program implementation 

and evaluation. 

Method 

A review of the administrative sanctions and criminal penalties for breath test refusal 

in each State, DC, and Puerto Rico was conducted. After the review, each State, the District 

of Columbia, and Puerto Rico were contacted to obtain breath test refusal data for the period 

from 1996 to 2001. Five case-study States were selected to learn more about the causes for 

refusals. Connecticut, Maryland, Florida, Louisiana, and Oklahoma were selected because 

they all had rates above the national average and provided a mix in terms of the magnitude of 

refusal rates and variations in impaired driving laws and practices. Refusal rates ranged from 

slightly above average to far above the national average. Laws pertaining to test refusals 

ranged from moderately weak to good. The case studies consisted of interviews with 

prosecutors, judges, defense attorneys, police officers, police supervisors, and administrative 

unit officers to (1) evaluate the arrest, breath test, administrative, and judicial processes, and 

(2) identify refusal problems, barriers, and potential solutions. 

Results 

 State laws vary widely with regard to administrative and criminal penalties for 

refusal. All States but one have administrative sanctions for refusal. Depending upon the 

State, the administrative sanctions are sometimes more stringent than those for failing a 

breath test. Most States do not criminalize refusal, but many admit refusals in criminal cases. 

Most of those that admit refusals in criminal cases do not permit refusals to be used as 

evidence of guilt. Some States have provisions to force a blood alcohol concentration (BAC) 

test after a refusal. 

 The distribution of refusal rates amongst States is depicted below in figure 1. The 

rates shown for 2001 are somewhat higher than rates reported for 1987 in an earlier study 

(Jones, Joksch, and Wiliszowski, 1991). 
0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

Puerto Rico

California

Nebraska

Maine

Hawaii

Kentucky

Pennsylvania

DC

Michigan

Oregon

West VirginiaNorth Dakota

Delaware

Minnesota

Kansas

New Jersey

Wisconsin

Georgia

Iowa

Mississippi

Utah

Alaska

North Carolina

Washington

Connecticut

New Mexico

Arkansas

Indiana

Maryland

South Carolina

Montana

Alabama

Idaho

Tennessee

Florida

Illinois

Oklahoma

Ohio

Texas

Louisiana

Massachusetts

New Hampshire

Rhode Island

*2000 data were used for Massachusetts and New Jersey.

**Complete data was not available from AZ, CO, MO, NV, NY, SD, VA, VT, or WY

 v 

Figure 1. 2001* Breath Test Refusal Percents by State**

Refusal rates for some individual States differ markedly from 1987 to 2001, which 

may be due to real differences or due to real differences combined with differences produced 

by different data collection methods used by these States for assessing refusal rates in 1987 

and in 2001. Refusal rates nationwide remained stable at about one-quarter of all drivers 

arrested for DWI from 1996 to 2001. States with statistically significant changes in refusal 

rates during this period were split evenly between those with increases and those with

decreases. In general, the States where refusal rates decreased already had low rates, and 

States where rates increased already had high refusal rates. No State with a significant 

increase in refusals criminalizes refusal. Six of the eight States with statistically significant 

decreases in refusals have hard license suspensions in which no hardship or work permits are 

available during the suspension period. 

Case Study Results 

In Connecticut, 75 percent of those refusing the test are first-time offenders who 

would receive much less severe administrative penalties and the same criminal penalties for 

taking and failing a breath test. They become eligible immediately for a work permit during 

the entire administrative suspension period if they fail a BAC test and almost always receive 

the Pretrial Alcohol Education program, which results in dismissal of their criminal cases 

after one year. First-time offenders reportedly often refused based on a lack of understanding 

of these consequences. 

In Maryland, the majority of the refusals are reportedly from first-time offenders. 

First-time offenders who fail breath tests can receive permission to drive during their entire 

administrative suspensions, while those who refuse and want to continue driving must have 

an interlock device installed for one year. First-time offenders almost always have their cases 
 vi 

pled down to a lesser impaired driving charge and receive Probation Before Judgment (PBJ), 

which results in the dismissal of their criminal cases and no record of a DWI, regardless of 

whether they take or refuse the test. The consensus advice for first-time offenders was to take 

the breath test because of the reduced administrative penalties and the same PBJ outcome for 

their criminal cases. As in Connecticut, many first-time offenders in Maryland do not 

understand these consequences. 

 In Florida, refusal benefits all offenders arrested for DUI. The increased severity of 

the administrative suspension for refusal is mitigated by the availability of hardship permits 

that can be obtained if the person does not have a prior BAC test refusal. Both defense 

attorneys and prosecutors agreed that the consequences for refusal are less severe than the 

consequences of conviction, even for a first offense. A new law in Florida criminalizing the 

second refusal may lead to a reduction in refusals by repeat offenders, but the law has not 

been in effect long enough for State officials to determine its impact. 

 In Louisiana, first-time offenders have a high rate of breath test refusal. Refusing the 

breath test benefits the criminal cases of all offenders arrested for DWI. Without a test result, 

district attorneys have a much more difficult time getting a DWI conviction and usually 

reduce the charges to obtain a guilty plea. Refusal has the added benefit of avoiding the 

sanctions contained in Louisiana’s high-BAC law if the offender’s test result would have 

been .15 or higher. In at least one jurisdiction, a judge has issued warrants to order blood 

tests for those who refuse. The strategy may be the best solution to reduce refusals without 

new legislation. 

 In Oklahoma, repeat offenders usually refuse the breath test, but most first-time 

offenders reportedly take it. All those interviewed agreed that it is to the advantage of any 

offender to refuse the test. The administrative penalties are essentially the same for those 

who fail and those who refuse a breath test, which means that the criminal case outcome 

affects refusal more than the administrative sanctions. First-time offenders almost always 

have their charges pled down regardless of whether they refuse or fail the test. 

 

Conclusions 

 

In many States across the country officers are instructed to read verbatim to suspects 

from an Administrative License Revocation (ALR) card - the information on this card is read 

to the suspect when the officer requests a breath sample, and this provides the suspect with 

information regarding the consequences of refusing to provide the sample. Officers are often 

instructed to read this information verbatim to ensure that each suspect receives the same 

information in a uniform manner that limits any possible coercion on the part of the officer.

 

In Connecticut and Maryland first-time offenders typically receive less severe 

penalties for failing the test, even with a high BAC, than for refusing the test. It is believed 

that many first-time offenders refuse the test because they do not understand these 
 vii 

consequences. For States such as these, State officials may want to review their process for 

notifying suspects of both the administrative and criminal consequences of refusing to 

provide a breath sample. However, States such as Connecticut and Maryland must then 

consider the consequences of these offenders receiving less severe sanctions. In addition, if 

these offenders are not convicted of an alcohol-related offense and are later stopped for DWI, 

they will not be considered repeat offenders. 

 Louisiana, and 11 other States with similar laws or case law (e.g., Arizona, 

California, and Wisconsin), could reduce breath test refusals by encouraging officers to 

obtain a warrant, when needed, to draw blood for a chemical test. Warrants could be obtained 

for as many types of DWI arrests as judges would be willing to issue warrants, such as cases 

in which the arrested driver had a minor in the vehicle, cases where the driver is suspected of 

having a BAC above .15, or in cases of driver involvement in an injury crash. Judges who 

may not be willing to issue warrants to draw blood for a chemical test for the standard firsttime DWI offenders may be more willing to issue a warrant for more egregious offenders. 

Warrants are already used in at least one jurisdiction in Louisiana. The extent of their use is 

not known, but they have reportedly eliminated the problem of refusals in cases where they 

are issued. 

 It is believed that Oklahoma and Florida are unlikely to reduce refusal rates 

substantially without new legislation. In each State, the administrative and criminal penalties 

for refusal are less severe than those for taking and failing the breath test. 
 viii 

Table of Contents 

I. Introduction................................................................................................................. 1

A. Background ............................................................................................................................................1

B. Study Goals............................................................................................................................................2

II. State Law Review................................................................................................ 2

A. Administrative Sanctions and Criminal Penalties for Refusal.........................................................2

B. Refusal as a Criminal Offense.............................................................................................................3

C. Refusal Admissibility in Court ..............................................................................................................3

D. Forcing a BAC Test...............................................................................................................................3

E. Additional Criminal Penalties for Drivers with a High BAC..............................................................3

F. Circumstances That May Reduce Penalties and Affect Refusal Rates ........................................4

1. Administrative License Action for Failing a BAC Test.......................................................4

2. Penalties for DWI Conviction....................................................................................................4

III. State Breath Test Refusal Rates..................................................... 5

A. Analyses of 2001 Breath Test Refusal Data .....................................................................................7

B. Comparison of 2001 and 1987 Breath Test Refusal Rates ..........................................................10

C. Trend Analyses of 1996-2001 Breath Test Refusal Data..............................................................10

IV.Case Study of Five States ..................................................................... 13

1. Characteristics of the 5 Selected States................................................................................13

a) Connecticut.......................................................................................................................................... 13

b) Maryland................................................................................................................................................ 13

c) Florida...................................................................................................................................................... 14

d) Louisiana............................................................................................................................................... 14

e) Oklahoma.............................................................................................................................................. 14

B. Case Study Data Collection Method.................................................................................................14

C. Case Study Results.............................................................................................................................17

1. Connecticut....................................................................................................................................18

2. Maryland........................................................................................................................................24

3. Florida ............................................................................................................................................29

4. Louisiana........................................................................................................................................36

5. Oklahoma.......................................................................................................................................42

V. Conclusions.............................................................................................................. 48

A. Connecticut and Maryland .................................................................................................................48

B. Louisiana...............................................................................................................................................49

C. Oklahoma and Florida ........................................................................................................................49
 ix 

VI. References.................................................................................................................. 50 

Appendix A: Criminal Provisions and Penalties for BAC Test Refusal........................................ 51 

Appendix B: Provisions and Penalties for Failing a BAC Test and DWI Conviction................... 60 

Appendix C: Connecticut Implied Consent Form A-44................................................................... 68 

Appendix D: Facsimile of Maryland Form DR-15: Advice of Rights ............................................. 71 

Appendix E: Florida Implied Consent Warning............................................................................... 73 
 x 

Tables and Figures 

TABLE 1. Breath Test Refusal Percents by State.................................................6 

TABLE 2. 2001 Average Reported Refusal Rate by State....................................8 

FIGURE 1. 2001 Breath Test Refusal Percents by State......................................9 

TABLE 3. Comparison of 1987 and 2001 Breath Test Refusal Distributions ......10 

TABLE 4. Trend Analysis of Breath Test Refusal Data by State.........................12 

TABLE 5. Connecticut Administrative Driver’s License Sanctions ......................19 

TABLE 6. Connecticut Criminal Penalties...........................................................20 

TABLE 7. Maryland Administrative Driver’s License Sanctions ..........................25 

TABLE 8. Maryland Criminal Penalties...............................................................25 

TABLE 9. Florida Administrative Driver’s License Sanctions ..............................30 

TABLE 10. Florida Criminal Penalties.................................................................30 

TABLE 11. Louisiana administrative Driver’s License Sanctions ........................37 

TABLE 12. Louisiana Criminal Penalties for those 21 or older. ..........................38 

TABLE 13. Louisiana Criminal Penalties for those under 21 ..............................39 

TABLE 14. Oklahoma Administrative Driver’s License Sanctions.......................43 

TABLE 15. Oklahoma Criminal Penalties ...........................................................43 
 1 

I. Introduction 

This interim report is organized into five chapters that contain the results to date 

for the breath test refusal study. Chapter I consists of the background information about 

breath test refusal rates in the Unites States over the past 20 years and describes the 

extent known about the breath test refusal problem resulting from recent changes in laws. 

Chapter II includes a review of the refusal and DWI laws for each State, breath test 

refusal rates for the past five available years for States, and information about trends 

found in breath test refusal rates. Chapter III contains the rationale for selecting each 

case-study State and describes the method used for the case study. Chapter IV includes a 

detailed description of the systems in five case-study States and identifies the problems 

and potential reasons for breath test refusal in those case-study States. Chapter V consists 

of a discussion of two recommended strategies for reducing breath test refusals. 

A. Background

From 1982 to 1996, the population of the United States increased by 15 percent, 

the number of licensed drivers increased by 20 percent, vehicle miles driven increased by 

56 percent, and the number of non-alcohol traffic fatalities increased by 32 percent. Yet, 

remarkably, the number of alcohol-related fatalities decreased 37 percent from 25,165 in 

1982 to 15,935 in 1998. This decrease has variously been attributed to: broad societal 

influences such as overall attitudes toward drinking and driving and the work of 

advocacy groups; legal initiatives including minimum age 21, illegal per se and 

administrative per se; enforcement including the use of well-publicized sobriety 

checkpoints; and public information and education (Ulmer, Hedlund and Preusser, 2000). 

Further reductions in the number of alcohol-related fatalities have been difficult 

to achieve. Before the decline in alcohol-related crashes from 2002 (17,524) to 2003 

(17,013), the number of alcohol-related fatalities increased from 2000 (16,653) to 2001 

(17,400) and from 2001 to 2002 (17,524). The most recent reduction may represent some 

success for renewed efforts to combat drinking and driving, but fatalities continue to 

remain well above the reductions achieved over a 14-year period ending in 1996. The 

continued high number of fatalities compared to the lows seen in the mid-1990s 

highlights the difficulties faced in renewing the downward trend in alcohol-related 

fatalities. New initiatives are required to achieve additional reductions in alcohol-related 

fatalities. 

Identifying new initiatives to achieve additional reductions in alcohol-related 

fatalities must begin with an understanding of the current state of knowledge. 

Understanding current knowledge requires understanding whether the problem has 

changed over time and how it has been affected by efforts to reduce it. There are two 

recent studies in which researchers have identified States that achieved the largest 

reductions in alcohol-related fatalities from 1982 to 1996 (Ulmer, Hedlund and Preusser, 

under review) and examined the reductions as a function of driver age, with a particular 

emphasis on youth (Hedlund, Ulmer and Preusser, 2000). 
 2 

One of the conclusions appears to be that stronger laws have been effective in 

reducing the number of people who choose to drink and drive. Unfortunately, strong laws 

can sometimes have unwanted consequences. Some States have believed that one such 

consequence has been an increase in the number of people who refuse the breath test. 

While such a decision may subject these people to serious implied consent penalties, it 

may also have the effect of avoiding a DWI conviction, which carries its own serious 

penalties. 

B. Study Goals

The three goals of this study are (1) to document the extent of the breath test 

refusal problem, (2) to investigate the reasons for breath test refusals, and (3) to develop, 

implement, and evaluate effective and efficient countermeasures to deal with the 

problem. 

II. State Law Review 

A review of the administrative sanctions and criminal penalties for breath test 

refusal in each State, the District of Columbia, and Puerto Rico was conducted using the 

Digest of State Alcohol-Highway Safety Related Legislation (National Highway Traffic 

Safety Administration, 2002) and the Implied Consent Laws (American Prosecutor 

Research Institute, 2002). For each State, the following were determined: (1) the 

administrative sanctions and criminal penalties for test refusal, (2) whether test refusal is 

a criminal offense, (3) whether a refusal is admissible in court, (4) whether a BAC test 

can be forced under certain circumstances, (5) whether drivers with a high BAC are 

subject to additional criminal penalties, and (6) the circumstances that may reduce these 

penalties. 

The administrative and criminal provisions and penalties for breath test refusals 

for each State are summarized in Appendix A. The provisions and penalties for failing a 

BAC test and for DWI convictions are summarized in Appendix B. These summaries 

include what must, should, or may happen following a breath test refusal or DWI 

conviction. The summaries can best be considered as the upper limits for penalties that 

can be imposed for administrative and criminal systems. During efforts to obtain refusal 

data for each State, discussions with personnel from each State’s legal and administrative 

systems confirmed that “mandatory” actions may often be reduced or ignored.

A. Administrative Sanctions and Criminal Penalties for Refusal

 All but one State, Nevada, have administrative license sanctions for refusing an 

alcohol test. State administrative sanctions include license suspensions and revocations 

for varying periods of time. The suspensions and revocations include restrictions varying 
 3 

from a “hard” suspension period in which no driving is allowed for a specified period (in 

38 States and the District of Columbia) to a “soft” suspension period in which drivers can 

obtain a temporary driving permit for purposes such as work and church (available in 9 

States). Louisiana, Maryland, and West Virginia have provisions for hard license 

suspension, but allow for restricted licenses/temporary driving permits in cases where an 

ignition interlock is installed in the car. 

 

B. Refusal as a Criminal Offense

 Eight States consider a test refusal as a criminal offense. The manner in which 

refusal is criminalized varies among the 8 States. Refusal is considered a misdemeanor in 

Alaska, Minnesota, Nebraska, and Ohio. It is considered an infraction in Indiana. In 

California, refusal becomes a criminal offense if the driver is convicted of DWI after 

refusal. In Vermont, refusal is criminalized for drivers with a prior DWI. In New Jersey, 

traffic law violations, including violations of the implied consent law, are considered 

“quasi-criminal.” All 8 States impose a fine and/or a jail sentence for the crime of 

refusing a breath test. 

C. Refusal Admissibility in Court

 Thirteen States and the District of Columbia admit a test refusal in civil and 

criminal cases. Thirty-four States admit a test refusal in criminal cases only. Michigan 

admits a refusal, but the refusal cannot be used as evidence of guilt. Hawaii considers a 

test refusal only during an administrative license revocation hearing. Rhode Island and 

Massachusetts do not admit a test refusal in either a civil or criminal case. 

D. Forcing a BAC Test 

Ten States have laws that either prohibit or do not address the issue of forcing a 

test when a driver refuses to submit to a test. Eleven States allow for a mandatory or a 

forceful submission to a test via a court order or search warrant. The remaining States and 

the District of Columbia specify circumstances under which a test becomes mandatory. 

For example, a test can be forced in 33 States if a driver is involved in a collision that 

resulted in a serious injury or a fatality. Some of the States permitting forced tests for 

serious injury and fatal crashes require evidence of probable cause/reasonable grounds 

that alcohol or another substance was involved or that a driver had a prior impaired 

driving offense. 

E. Additional Criminal Penalties for Drivers with a High BAC

As of January 2002, 31 States and the District of Columbia had a law or a 

regulation that provides for enhanced sanctions for drivers with high BACs. The highBAC threshold ranges from .15 - .20%. The enhanced sanctions include longer and more 
 4 

intensive education and/or treatment; limitations on deferred judgment provisions or 

deferred prosecution; limitations on plea reductions; enhanced driver sanctions, such as 

jail sentence, driver license suspension, community service, electronic home monitoring, 

and fine; enhanced vehicle sanctions, such as ignition interlock device (IID) and 

administrative plate impoundment; and court consideration of high BAC as an 

aggravating factor at sentencing. At least theoretically, the availability of additional 

sanctions for high-BAC offenders should negatively influence a suspect’s willingness to 

submit to a BAC test. However, this was not the case in Minnesota. Minnesota enacted its 

“high-BAC” law in 1998, and defines a high BAC as .20 or higher. An evaluation of the 

effects of this law indicated that the rate of refusals actually declined significantly among 

first-time offenders and was essentially unchanged for those with a prior conviction. This 

may be due to Minnesota’s strong law regarding test refusals (McCartt and Shabanova, 

2003). 

F. Circumstances That May Reduce Penalties and Affect Refusal Rates

There are several factors that may affect refusal rates. For example, if the penalty 

for a refusal is less than a penalty for failing an alcohol test, more drivers may refuse to 

submit to a test. Each State’s administrative sanctions, criminal penalties for failing a 

BAC test for first time, and subsequent offenses were reviewed to identify common 

factors that may affect refusal rates. The administrative and criminal penalty information 

from each State is presented in Appendix B. 

1. Administrative License Action for Failing a BAC Test 

Forty-two States either administratively suspend or revoke the driver’s license of 

an offender who fails an alcohol test. State provisions for administrative license actions 

vary in terms of revocation and suspension periods, as well as whether a driving permit or 

a restricted license is available immediately (“soft” suspension or revocation period) or 

after a specified period of time (“hard” suspension or revocation period). Eight States 

(Kentucky, Michigan, Montana, New Jersey, Pennsylvania, Rhode Island, South Dakota, 

and Tennessee) do not have any administrative license actions for failing an alcohol test. 

In South Carolina, an administrative license action provision is not applicable to 

offenders with BACs < .15. 

2. Penalties for DWI Conviction 

Court-ordered license suspensions or revocations following a DWI conviction can 

also be “hard” or “soft”. In addition to a license action, post-conviction court penalties 

may also include fines (substantial in some States, for example, up to $2,500 for a first 

DWI conviction in Illinois); jail terms up to two years for a first DWI conviction in some 

States (e.g., Washington and Vermont); and community service which can be served in 
 5 

lieu of a certain number of hours of a jail term or in addition to a jail term. Judges may 

impose additional sanctions as well. 

III. State Breath Test Refusal Rates 

In October and November 2002, each of the 50 States, the District of Columbia, 

and Puerto Rico were contacted to obtain their breath test refusal information. The 

information included the number of breath tests requested and the number refused for 

each of the six prior years, 1996-2001. Additional information gathered included whether 

test refusal was considered a crime, whether licensing actions for refusal were “hard” 

(mandatory) or “soft” (hardship licenses could be granted under certain circumstances), 

whether refusals were reported to insurance companies, and a relative comparison of 

DWI and refusal sanctions. Five States that did not have 2001 breath test refusal data 

available in November were contacted in July 2003 to obtain the 2001 data. Three of the 

five States were then able to provide 2001 data. Massachusetts and New Jersey were only 

able to provide 2000 data. 

Table 1 presents a summary of results. When possible, each State provided data 

from a “central,” responsible authority in charge of collecting test refusal data. The 

central authorities in many States depended upon the completeness and consistency of 

reporting from other agencies in the State, so the breath test request and refusal data, at 

least in some States, represent best estimates of breath test refusal rates. Three States 

(Colorado, New York, and Wyoming) were unable to provide any data on refusals. 

Nevada had refusal data only on drivers involved in fatal crashes. Five States (Arizona, 

Missouri, South Dakota, Virginia, and Vermont) were able to provide the number of 

refusals but not the number of tests requested. 

The remaining 41 States, the District of Columbia, and Puerto Rico provided both 

tests refused and tests requested for at least one year. In four of these States (Delaware, 

Maryland, Pennsylvania, and Texas) the highway patrol served as the only data source. 

The Maryland highway patrol covers the entire State, so its data represents a central 

source. For the three other States, the highway patrol was responsible for a substantial 

portion of DWI arrests statewide, so their test request and refusal data served as the best 

statewide estimates. 
 6 

Table 1. 

Breath Test Refusal Percents by State 

State 2001 2000 1999 1998 1997 1996 

Alabama* 31.1% 

Alaska* 17.4% 18.0% 15.9% 15.6% 15.9% 

Arkansas* 21.2% 

California* 5.3% 5.5% 5.4% 5.5% 6.3% 6.7% 

Connecticut* 18.7% 18.2% 17.4% 17.1% 

DC* 12.0% 13.2% 14.0% 13.5% 

DelawareHP 14.7% 

Florida* 37.1% 37.1% 35.9% 36.7% 36.1% 

Georgia* 17.0% 17.5% 18.8% 19.3% 23.2% 23.2% 

Hawaii* 9.4% 

Idaho* 31.6% 31.0% 30.0% 27.0% 28.3% 25.7% 

Illinois* 38.3% 38.1% 38.0% 37.5% 39.1% 39.2% 

Indiana* 22.5% 21.5% 

Iowa* 17.0% 16.2% 16.6% 17.7% 18.6% 

Kansas* 15.2% 15.2% 15.4% 16.0% 15.6% 15.8% 

Kentucky* 10.2% 9.7% 8.1% 7.7% 7.6% 8.1% 

Louisiana* 45.9% 42.4% 40.6% 39.6% 40.8% 41.3% 

Maine* 7.8% 7.8% 9.2% 9.0% 9.6% 10.1% 

Maryland* 29.1% 28.4% 26.7% 25.3% 25.6% 26.0% 

Massachusetts* 46.5% 49.9% 63.0% 60.8% 54.9% 

Michigan* 12.8% 13.2% 14.2% 15.5% 14.8% 

Minnesota* 14.8% 14.4% 14.4% 15.3% 16.5% 17.6% 

Mississippi* 17.3% 18.3% 17.6% 18.4% 21.7% 22.8% 

Montana* 30.3% 35.0% 36.0% NA 33.1% 29.4% 

Nebraska* 6.2% 7.0% 6.7% 6.8% 

New Hampshire* 82.3% 81.9% 81.7% 79.5% 74.7% 71.6% 

New Jersey* 16.7% 

New Mexico* 19.0% 19.0% 19.0% 21.0% 22.0% 22.0% 

North Carolina* 17.8% 18.6% 

North Dakota* 14.2% 14.2% 14.5% 15.7% 14.7% 14.0% 

Ohio* 40.4% 34.0% 32.9% 31.3% 

Oklahoma* 38.3% 38.3% 37.6% 35.0% 35.5% 35.2% 

Oregon* 13.0% 12.2% 13.1% 13.8% 16.3% 17.8% 

PennsylvaniaHP 10.2% 9.2% 

Rhode Island* 84.9% 96.4% 91.7% 92.2% 89.9% 

South Carolina* 29.9% 28.3% 26.2% 25.5% 

Tennessee* 35.5% 

TexasHP 40.6% 40.2% 42.5% 42.0% 

Utah* 17.3% 18.9% 19.8% 22.0% 18.1% 51.8% 

Washington* 17.9% 18.4% 18.2% 18.4% 17.8% 19.1% 

West Virginia* 14.0% 12.8% 14.3% 

Wisconsin* 18.9% 14.2% 14.5% 13.8% 

Puerto Rico* 1.9% 1.8% 1.8% 2.4% 1.2% 1.4% 

 

Source: * = Central 

 HP = Highway Patrol 
 7 

A. Analyses of 2001 Breath Test Refusal Data 

Using the last year of available data (2001 for most States, but 2000 for 

Massachusetts and New Jersey), the average refusal rate, with each State counted equally, 

but excluding Puerto Rico, is 25 percent. As indicated in table 2, when the States are 

weighted by their populations, the average refusal rate is 24 percent. The distribution of 

2001 breath test refusal rates (using 2000 data for two States) is skewed, due to a few 

States with very high refusal rates. California had the lowest refusal rate for 2001 at 5 

percent, while Rhode Island had the highest at 85 percent. Figure 1 shows this 

distribution graphically. For such a skewed distribution, the quartiles and the median are 

more descriptive than either the weighted or unweighted means: 

• First quartile 14% 

• Median 18% 

• Third quartile 32%. 

 Several comparisons between States were made to determine if any differences 

existed in their average refusal rates related to differences in their administrative and 

criminal sanctions. First, States that have high-BAC laws had higher average refusal rates 

(M=26%) than those without high-BAC laws (M=22%), but the independent samples ttest indicated that the differences were not significant t(40)=.785, p>.45. Second, States 

with soft license suspension periods had higher average refusal rates (M=28.46%) than 

those with hard suspension periods (M=23%), but again the independent samples t-test 

indicated that the difference was not significant t(40)=.785, p>.45. Third, States that 

criminalize refusal had a lower average refusal rate (M=17.61%) than those that do not 

criminalize refusal (M=26%), but the difference was not significant according to the 

results of the independent samples t-test t(40)=-1.178, p.>.20. Overall, results from 

comparisons of these three types of laws showed differences in the average refusal rate 

that were consistent with the intent of the laws, but not large enough to approach 

significance. 
 8 

Table 2. 

2001* Average Reported Refusal Rate by State and 

2001 Average Refusal Rate Weighted by 2001 Population Size 

State Reported Population Population Weight Weighted 

Alabama 31.1% 4,464,356 0.019 0.6% 

Alaska 17.4% 634,892 0.003 0.0% 

Arkansas 21.2% 2,692,090 0.011 0.2% 

California 5.3% 34,501,130 0.144 0.8% 

Connecticut 18.7% 3,425,074 0.014 0.3% 

DC 12.0% 571,822 0.002 0.0% 

Delaware 14.7% 796,165 0.003 0.0% 

Florida 37.1% 16,396,515 0.069 2.5% 

Georgia 17.0% 8,383,915 0.035 0.6% 

Hawaii 9.4% 1,224,398 0.005 0.0% 

Idaho 31.6% 1,321,006 0.006 0.2% 

Illinois 38.3% 12,482,301 0.052 2.0% 

Indiana 22.5% 6,114,745 0.026 0.6% 

Iowa 17.0% 2,923,179 0.012 0.2% 

Kansas 15.2% 2,694,641 0.011 0.2% 

Kentucky 10.2% 4,065,556 0.017 0.2% 

Louisiana 45.9% 4,465,430 0.019 0.9% 

Maine 7.8% 1,286,670 0.005 0.0% 

Maryland 29.1% 5,375,156 0.022 0.7% 

Massachusetts 46.5% 9,990,817 0.042 1.9% 

Michigan 12.8% 6,379,304 0.027 0.3% 

Minnesota 14.8% 4,972,294 0.021 0.3% 

Mississippi 17.3% 2,858,029 0.012 0.2% 

Montana 30.3% 904,433 0.004 0.1% 

Nebraska 6.2% 1,713,235 0.007 0.0% 

New Hampshire 82.3% 1,259,181 0.005 0.4% 

New Jersey 16.7% 8,484,431 0.035 0.6% 

New Mexico 19.0% 1,829,146 0.008 0.1% 

North Carolina 17.8% 8,186,268 0.034 0.6% 

North Dakota 14.2% 634,488 0.003 0.0% 

Ohio 40.4% 11,373,541 0.048 1.9% 

Oklahoma 38.3% 3,460,097 0.014 0.6% 

Oregon 13.0% 3,472,867 0.015 0.2% 

Pennsylvania 10.2% 12,287,150 0.051 0.5% 

Rhode Island 84.9% 1,058,920 0.004 0.4% 

South Carolina 29.9% 4,063,011 0.017 0.5% 

Tennessee 35.5% 5,740,021 0.024 0.9% 

Texas 40.6% 21,325,018 0.089 3.6% 

Utah 17.3% 2,269,789 0.009 0.2% 

Washington 17.9% 5,987,973 0.025 0.4% 

West Virginia 14.0% 1,801,916 0.008 0.1% 

Wisconsin 16.9% 5,401,906 0.023 0.4% 

Total Average 25.32% 239,272,876 1.000 24.4% 

*2000 data were used for Massachusetts and New Jersey 
9 

Figure 1. 

2001* Breath Test Refusal Percents by State**

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*2000 data were used for Massachusetts and New Jersey.

**Complete data was not available from AZ, CO, MO, NV, NY, SD, VA, VT, or WY.
 10 

B. Comparison of 2001 and 1987 Breath Test Refusal Rates

A previous survey of State refusal rates, with 1987 data, obtained data from 40 

States (Jones and Wiliszowski, 1991). As indicated in table 3, the lowest refusal rate was 

4 percent lower in 1987 than 2001 and the highest refusal rate was 13 percent lower in 

1987 as compared to 2001. The State at the highest end of the range was the same, Rhode 

Island, for both comparison years. The table also indicates that the median refusal rate for 

2001 was 4 percent higher than the median refusal rate for 1987. The first and fourth 

quartiles also indicate that the refusal rates were higher for 2001 as compared to 1987. 

There were also fewer States with refusal rates above 40 percent in 1987 as compared to 

2001. The 2001 distribution appears very similar to the 1987 distribution, but with 

slightly higher refusal rates and more States at the high end of the distribution. Refusal 

rates for some individual States differ markedly from 1987 to 2001, suggesting 

potentially serious limitations on any comparisons of the data from these two studies. 

Table 3. 

Comparison of 1987 and 2001 Breath Test Refusal Distributions 

 1987 2001 

Number of States Reporting 40 42 

Range of Rates 1% - 72% 5% - 85% 

Mean Refusal Rate 19% 25% 

Median Refusal Rate 14% 18% 

First Quartile 11% 14% 

Third Quartile 22% 32% 

Number of States over 40% Refusal Rate 3 6 

Highest Refusal Rate among States 71% 85% 

C. Trend Analyses of 1996-2001 Breath Test Refusal Data

To analyze refusal rate changes in recent years, simple linear regressions were 

calculated for each of the 32 States with at least three years of refusal rate data. Table 4 

presents the results. 

Refusal rates increased in 13 States. Seven States had statistically significant 

increases (p < 0.05). Rates decreased in 18 States and the District of Columbia. Eight of 

the 13 States had statistically significant decreases (p < 0.05). 

The States that had significant decreases in refusal rates had low rates to begin 

with, and the States where rates increased began with high refusal rates. For example, 

eight States that reduced their rates had a mean rate of 13 percent and a median of 14 
 11 

percent in the last available year, while the seven States whose rates increased had a 

mean of 34 percent and median of 30 percent. 

Among States with significant decreases in test refusals, two (California and 

Minnesota) criminalize test refusals. Six out of 8 States with significant decreases have 

hard license suspension periods. Two of the 8 States (Michigan and New Mexico) allow 

for a court order or a search warrant to force a test. Mississippi and Georgia prohibit a 

forceful test. The remaining States with significant decreases allow force to be used to 

obtain a BAC test result if a driver was involved in a serious/fatal injury crash (in some 

States, reasonable grounds/probable cause of driver impairment is required). 

None of the States with significant increases in test refusals criminalize test 

refusals. Five out of these 7 States have hard license suspension periods. South Carolina 

does not have ALR for offenders with BAC < .15%. None of the States in this group have 

statutory provisions for a court order or a search warrant to force a test. Connecticut is the 

only State in the group that allows for blood to be drawn to the extent provided by law 

while the other States allow for a forced BAC test if a driver was involved in a crash that 

resulted in a serious/fatal injury (in some States, reasonable grounds/probable cause of 

driver impairment is required). 

According to the results of the simple linear regressions, there is no recent 

increasing or decreasing trend for refusal rates across all States combined. The 15 States 

with significant trends are split evenly between increases and decreases. The reduction in 

refusal rate is less than 2 percent for these States. New Hampshire experienced a 10 

percent increase, which added to its already high refusal rate compared to other States. 

The greatest change across the remaining States was 6 percentage points or about 1 

percentage point each year. 
 12 

Table 4. 

Trend Analysis of Breath Test Refusal Data by State

Trend State reg +/- std err t-stat p value 

New Hampshire 0.0221 0.0044 4.9657 0.0077 

South Carolina 0.0153 0.0020 7.8179 0.0160 

Idaho 0.0116 0.0023 5.1399 0.0068 

Oklahoma 0.0076 0.0019 4.0365 0.0156 

Maryland 0.0072 0.0021 3.4739 0.0255 

Connecticut 0.0056 0.0006 8.6410 0.0131 

Statistically

Significant 

Increase 

Kentucky 0.0049 0.0016 3.0253 0.0390 

Ohio 0.0284 0.0086 3.2921 0.0812 

Louisiana 0.0082 0.0043 1.9210 0.1271 

Alaska 0.0054 0.0023 2.2984 0.1051 

Montana 0.0033 0.0069 0.4797 0.6565 

Florida 0.0024 0.0015 1.6036 0.2071 

Increase 

Wisconsin 0.0090 0.0091 2.1330 0.1660 

California -0.0027 0.0007 -3.7899 0.0193 

Maine -0.0048 0.0008 -5.8593 0.0042 

Minnesota -0.0061 0.0017 -3.6390 0.0220 

Michigan -0.0063 0.0018 -3.4663 0.0405 

New Mexico -0.0070 0.0065 -4.8010 0.0090 

Oregon -0.0106 0.0025 -4.1899 0.0138 

Mississippi -0.0110 0.0028 -3.9172 0.0173 

Statistically

Significant 

Decrease 

Georgia -0.0139 0.0023 -5.9985 0.0039 

North Dakota -0.0005 0.0016 -0.2985 0.7802 

Washington -0.0013 0.0011 -1.1734 0.3057 

Kansas -0.0014 0.0005 -2.5392 0.0640 

Nebraska -0.0015 0.0015 -0.9785 0.4310 

West Virginia -0.0015 0.0078 -0.1925 0.8790 

Illinois -0.0020 0.0061 -1.3690 0.2430 

Iowa -0.0047 0.0022 -2.1765 0.1177 

DC -0.0053 0.0028 -1.9187 0.1950 

Rhode Island -0.0058 0.0148 -0.3906 0.7222 

Texas -0.0065 0.0039 -1.6700 0.2369 

Decrease 

Utah -0.0492 0.0260 -1.8927 0.1313 
 13 

IV. Case Study of Five States 

 Another objective of the study was to learn as much as possible about the causes 

for low refusal rates in some States and high refusal rates in other States. Five States were 

selected for case study to determine the likely causes for their refusal rates. The case 

studies involved in-depth evaluation of the arrest, breath test, administrative, and judicial 

processes to identify refusal problems, barriers, and potential solutions. 

1. Characteristics of the 5 Selected States 

The 5 States selected all had refusal rates above the national average and provided 

a mix in terms of the magnitude of refusal rates and variations in impaired driving laws 

and practices. Refusal rates ranged from slightly above the national average to far above 

the national average. Laws pertaining to test refusals ranged from moderately weak to 

good. The impaired driving laws in these States reflected a mix of the following: none 

have criminalized refusal; 2 States have hard suspension periods for a test refusal and 2 

States have hard suspension periods without an ignition interlock device; 4 States have 

.08 BAC per se laws, 4 States have a high BAC law, and all States have Administrative 

License Revocation provisions and with test refusal admissible in court. 

a) Connecticut 

Connecticut’s 2001 test refusal rate of 19 percent is near the national median 

point of 18 percent and has risen slightly from 17 percent in 1998. Review of Connecticut 

law, as well as discussions with State representatives, revealed that test refusal is not a 

crime; it is admissible in court; and administrative penalties for refusal are more severe 

than those for DUI. For example, for a first-time refusal, the license suspension period is 

hard for 90 days, whereas for a first-time alcohol test failure a temporary driving permit 

is available to the offender immediately. The State has ALR provisions, a .08 BAC per se 

law, and a high-BAC (.16) law. 

b) Maryland 

Maryland’s 2001 test refusal rate of 29 percent is well above the 18 percent of the 

national median. The rate has risen gradually from 26 percent in 1996. Maryland’s law 

has a longer hard license suspension period for a test refusal than for failing a breath test, 

but a hardship license is available immediately if an ignition interlock is installed for one 

year. Test refusal is not criminalized. The State has ALR provisions and a .08 BAC per se 
 14 

law. Interviews with the State representatives revealed that penalties for refusal 

frequently are not applied and that test refusal is a problem. 

c) Florida 

Florida’s 2001 refusal rate of 37 percent ranks tenth highest of the 46 States with 

known rates. The State’s refusal rate has remained at this level since 1997. Florida has a 

hard license suspension period for a test refusal, though test refusal is not criminalized. 

Florida has ALR provisions, .08 BAC per se law, and a high-BAC law (.20). Interviews 

indicated that test refusal is a known major problem in Florida and the State has been 

trying to find a solution. 

d) Louisiana 

Louisiana’s 2001 test refusal rate of 46 percent ranks it fourth highest among 

States with known rates. The rate has risen from 41 percent in 1996. Louisiana has a 

shorter soft license suspension period if an ignition interlock is installed. Test refusal is 

not criminalized. Interviews with the State representatives revealed that offenders are 

willing to accept the administrative penalty for a test refusal in order to avoid the criminal 

DWI charge. Louisiana has ALR provisions and a high-BAC law (.15) and has a .08 per 

se law effective September 30, 2003. 

e) Oklahoma 

Oklahoma’s 2001 test refusal rate of 38 percent is high, considering its low rate of 

.61 persons fatally injured per 100 million vehicle miles traveled for alcohol-related 

crashes. The refusal rate has risen from 35 percent in 1996. Oklahoma has a soft license 

suspension period and similar penalties for a test refusal and DUI. Test refusal is not 

criminalized. Oklahoma has ALR provisions, .08 BAC per se law, and a high-BAC law 

(.15). 

B. Case Study Data Collection Method

 The first goal of data collection for the case studies was to understand the entire 

system, from arrest to conviction. To collect data on the system, interview protocols for 

prosecutors, judges, defense attorneys, police officers, police supervisors, and 

administrative unit officers were developed. The purpose of the interviews was to ask 

about the system, how the system operated in practice, discover problems with the 

system, and identify potential solutions for improving breath test submission rates. Each 

set of questions asked for specific types of information. 
 15 

 The following lists identify the types of information sought during interviews 

with each specialty. 

Prosecutors: 

• Typically imposed penalties for first and subsequent DWIs 

• Typical administrative sanctions for first and subsequent DWIs 

• The factors affecting how refusal cases are prosecuted 

• Evidence needed to prosecute refusal cases 

• Success rates for prosecuting refusals 

• Characteristics of those refusing breath tests 

• Differences in court jurisdictions with regard to how breath test refusal cases are 

adjudicated 

• Training prosecutors receive for DWI cases 

• Suggestions, within existing legislation, to decrease the number of drivers who 

refuse the breath test. 

Judges: 

• Typically imposed penalties for first and subsequent DWIs 

• Typical administrative sanctions for first and subsequent DWIs 

• Impact of particulars on a case and penalties 

• The factors affecting how and when refusal cases are prosecuted 

• Evidence needed to prosecute refusal cases 

• Prospects of prosecutors bringing more refusal cases to court 

• Additional evidence police need to collect for successful prosecution of refusal 

cases 

• Characteristics of those refusing breath tests 

• Differences in court jurisdictions with regard to how breath test refusal cases are 

adjudicated 

• Training that prosecutors receive for DWI cases and the judge’s experience with 

DWI cases 

• Suggestions, within existing legislation, to decrease the number of drivers who 

refuse the breath test. 

Defense Attorney: 

• Typical penalties imposed for first and subsequent DWIs 

• Typical administrative sanctions for first and subsequent DWIs 

• The factors affecting how refusal cases are prosecuted 

• Advice given to clients concerning breath test refusal 

• Success rate for defending cases with a BAC test refusal 

• Differences in court jurisdictions with regard to how breath test refusal cases are 

adjudicated 
 16 

• Training defense attorneys receive for DWI cases 

• Suggestions, within existing legislation, to decrease the number of drivers who 

refuse the breath test. 

• Suggestions, excluding legislative changes, that would make it more likely for 

defense attorneys to encourage clients to take rather than refuse the breath test 

Police Officer/State Trooper: 

• Describe the arrest process

• Number of DWI arrests made by the officer/trooper each year

• Number of individuals who consent to take the breath test

• Process for administering breath tests

• Typically imposed penalties for first and subsequent DWIs 

• Typical administrative sanctions for first and subsequent DWIs 

• The factors affecting how refusal cases are prosecuted 

• Defense community advise concerning test refusal 

• Differences in collecting evidence for refusal cases 

• Success rates for prosecuting refusals 

• Characteristics of those refusing breath tests 

• Differences in court jurisdictions with regard to how breath test refusal cases are 

adjudicated 

• Training police officers receive for implied consent and gaps that need to be filled 

• Suggestions, within existing legislation, to decrease the number of drivers who 

refuse the breath test. 

Police Supervisor: 

• Describe the arrest process

• Number of DWI arrests made under the person’s command each year

• Number of individuals who consent to take the breath test

• Process for administering breath tests

• Typically imposed penalties for first and subsequent DWIs 

• Typical administrative sanctions for first and subsequent DWIs 

• The factors affecting how refusal cases are prosecuted 

• Defense community advice concerning test refusal 

• Differences in collecting evidence for refusal cases 

• Success rates for prosecuting refusals 

• Characteristics of those refusing breath tests 

• Differences in court jurisdictions with regard to how breath test refusal cases are 

adjudicated 

• Training police officers receive for implied consent and gaps that need to be filled 

• Suggestions, within existing legislation, to decrease the number of drivers who 

refuse the breath test. 
 17 

Administrative Unit Officers/DMV 

• Administrative Consequences for DWI/DWI arrest 

• Factors affecting refusal rates 

• Description of what happens at the administrative hearings 

• Description of how administrative license suspensions are applied. 

• Suggestions, within existing legislation, to decrease the number of drivers who 

refuse the breath test. 

C. Case Study Results

Breath Test Refusal System, Problems, and Barriers 

 The interview results are organized into the following sections for each of the 5 

case study States: (1) the system, (2) how the system works, (3) how BAC tests are 

requested and administered, (4) advantages of taking or not taking a breath test, (5) who 

takes and who refuses the BAC test, (6) benefits of BAC test results, and (7) potential 

strategies to reduce BAC test refusals. 
 18 

1. Connecticut 

Connecticut’s breath test refusal rate was 18.7 percent for 2001. 

1) The System 

 Connecticut’s impaired driving legislation identifies two methods for determining 

that a person committed the offense of operating a motor vehicle under the influence of 

intoxicating liquor, any drug, or both (DUI). The first method specifies that a person can 

be considered to be operating a vehicle under the influence if the person is found to be 

under the influence of intoxicating liquor, any drug, or both. This method does not 

identify any criteria for making the determination. The second method specifies that a 

person can be considered operating a motor vehicle under the influence if found to have 

an “elevated blood alcohol content,” which means a BAC ≥ .08 percent. 

 After arrest, the person must submit to a BAC test within two hours of operating 

the motor vehicle. The BAC test consists of two tests of the same type, done no less than 

30 minutes apart. The second test is used to determine whether the first test was an 

accurate measurement of BAC. The person under arrest must have an opportunity to 

contact a lawyer during a 15-minute period before deciding whether to submit to the 

BAC test. Refusing either test constitutes a refusal. If the person does not provide an 

adequate breath or urine sample when requested and refuses to submit to a blood test, the 

officer or trooper records it as a refusal. 

 Connecticut offers a Pretrial Alcohol Education Program for first-time offenders. 

Those with a DUI arrest in the previous 10 years are not eligible. If the offender 

completes the program, the court dismisses the DUI charges. The record of participation 

in the program remains as part of the person’s driving record for 7 years. 

 Connecticut has an administrative “per se” license suspension for anyone with a 

BAC ≥.08 percent. Offenders who want a hearing at the Department of Motor Vehicles 

(DMV) administrative “per se” unit to get their licenses back must schedule one and have 

it within 30 days of arrest. If the offender does not schedule a hearing, the administrative 

“per se” unit issues the appropriate license suspension. If there is a hearing, the 

administrative hearing officer uses the hearing to gather information necessary to decide 

whether the preponderance of evidence establishes the following four points: (1) the 

officer had probable cause to arrest the person for operating a motor vehicle under the 

influence, (2) the person was placed under arrest, (3) the BAC test was administered 

properly, and (4) the person was operating the motor vehicle. 

 If the four points are met, the person’s license is suspended. The suspension 

period is 90 days if the person submitted to a BAC test and six months if the person 

refused to submit to a BAC test. 
 19 

 First-time offenders who submit to a BAC test are immediately eligible for a work 

permit, which means they can continue driving during the entire administrative 

suspension period. First-time offenders who refuse the test must wait 90 days of their sixmonth administrative suspension period before they can get a work permit. 

Administrative license suspensions are separate from those that are court-determined or 

mandated after a conviction. If a person is caught operating a motor vehicle under the 

influence while using the permit, the person can be jailed for a period of one month to 

one year and fined $500. 

 Connecticut has criminal penalties and administrative sanctions that increase with 

the number of offenses and vary for those under 21 (zero tolerance law), those with a 

BAC ≥.16, and those with a BAC greater than .08 but less than .16. 

Tables 5 and 6 summarize the administrative sanctions and criminal penalties. 

Table 5. 

Connecticut Administrative Driver’s License Sanctions 

 

Blood Alcohol Level First Offense 

Second 

Offense 

Third 

Offense 

Refusal to submit to a blood, 

breath or urine test 6 month suspension 

1.5 year 

suspension 

1.5 year 

suspension 

Test results of .02 or higher 

and you are under 21 years of 

age 

180 day 

suspension 

9 month 

suspension 

2 year 

suspension 

Test results of .08 or higher; 

up to, but not including, .15 

90 day 

suspension 

9 month 

suspension 

2 year 

suspension 

Test results of .15 or higher 

120 day 

suspension 

10 month 

suspension 

2.5 year 

suspension 

 
 20 

Table 6. 

Connecticut Criminal Penalties

 

Type of 

Penalty 

First Offense 

Test results of .08 or 

higher 

Second Offense 

(within 10 years) 

Test results of .08 or 

higher 

Third Offense 

(within 10 years) 

Test results of .08 or 

higher 

Fine $500 to $1,000 $1,000 to $4,000 $2,000 to $8,000 

Jail 6 months; 48 hrs. 

minimum 

mandatory or 6 

months suspended 

with 100 hrs. 

community service 

2 years; 120 days 

minimum mandatory 

and 100 hrs. of 

community service 

3 years; 1 year 

minimum mandatory 

and 100 hrs. of 

community service 

Driver’s 

License 

Suspension 

One year Three years 

(or until you are 21, 

whichever is longer) 

Permanent 

2) How the System Works 

 The administrative sanctions are fairly certain and do not vary much across the 

State because all administrative sanctions are controlled by the Administrative Per Se 

Unit of the Department of Motor Vehicles. The head of the Administrative Per Se Unit 

reported that half of all offenders do not request an administrative hearing, which means 

that the applicable license suspension penalty is automatically applied. For those who do 

request hearings, many do not show up. In such cases, the suspension is automatically 

applied as well. Administrative sanctions are also generally applied to those few who 

schedule and show up for an administrative hearing. 

 Defense attorneys use the administrative hearings to find out the strength of the 

case against their clients, which often puts the arresting officers and troopers on the spot 

without much preparation. 

 The certainty of criminal penalties varies with different judges and prosecutors. If 

prosecutors have heavy caseloads, or lack police reports with detailed behavioral 

descriptions supporting a strong case, they often permit the offender to plea the charges 

down to reckless driving or simply “nolle” the case, which means that the State chooses 

to end prosecution of the case, or go no further with the case. Some jurisdictions are 

much harder on DUI cases than others. 

 Many repeat offenders fight their cases vigorously because the penalties can be 

severe. Judges in many jurisdictions do not impose the maximum penalties for the first or 

repeat offenses. They may take the administrative penalties into account when 

considering criminal penalties by running court-imposed license suspensions 
 21 

concurrently with administrative license suspensions instead of consecutively. Most 

repeat offenders receive longer license suspensions, but no jail time. 

 Generally, if a person refuses the BAC test, that person is more likely to contest 

the case. The lack of BAC test results clouds the case just enough to give the defense an 

advantage it does not have when there are test results. Defense attorneys usually attack 

the police reports and the behavioral cues reported by the officer or trooper. Without a 

BAC test, these reported cues are the only evidence the State has of the person’s 

intoxication at the time of arrest. 

3) How BAC Tests are Requested and Administered 

 Officers and troopers use a standard form called the A-44, located in Appendix C, 

to inform those under arrest of their implied consent to take the BAC test. The form 

explains the request for the BAC test and their right to refuse the test. After reading the 

form to the individual, the person must be allowed to try contacting a lawyer for advice 

on whether to take the test. Most are not able to get in touch with a lawyer before 

deciding whether to take the test. 

 In addition to reading the A-44, some officers and troopers try to calm offenders 

before sitting them down in front of the Intoxilyzer 5000 so the individuals are not as 

defensive. It is believed that these officers have much lower refusal rates because officer 

rapport with the driver helps. Those interviewed indicated that refusals are likely higher 

in cases where an officer is not experienced at developing rapport with offenders or are in 

a hurry to get through all the paperwork involved in the arrest process. 

 Offenders must take two BAC tests of the same type. The first test must be 

administered within two hours of the person operating a motor vehicle. The breath test 

must be administered by a certified officer or trooper. Almost all officers and troopers in 

the State are trained and certified on the Intoxilyzer 5000. Thus, the arresting officer most 

often administers the test. 

4) Advantages of Taking or Not Taking a Breath Test 

 From the vantage point of the offender, first-time offenders benefit by taking the 

test because it benefits them more than refusing, but repeat offenders benefit more by 

refusing the BAC test because they benefit more from refusing than taking and failing a 

BAC test. First-time offenders are eligible for the Pretrial Alcohol Education Program 

through the courts and a work permit from the DMV, so they can keep driving, on a 

restricted basis, throughout their suspension period and get the charges dismissed when 

they complete the alcohol education program. First-time offenders definitely benefit more 

by agreeing to take the BAC test than refusing it. Repeat offenders gain a slight 

advantage by refusing to take the test. If an offender has already gotten a work permit and 

taken the alcohol education class for a prior arrest, the offender is not eligible for either. 

Repeat offenders cannot avoid the administrative suspension unless they contest the 

arrest at the administrative hearing. The focus of most repeat offenders is on improving 
 22 

their chances at a successful criminal defense. Refusing the test provides an advantage to 

their case and increases the likelihood of a plea bargain, nolle, or reduced criminal 

penalty. 

 Repeat offenders often benefit from refusing the BAC test because it clouds the 

case just enough to give them a slight advantage in court proceedings. The administrative 

penalties are not severe enough to deter refusals by repeat offenders. 

5) Who Takes and Who Refuses a BAC Test 

 First-time offenders constitute 75 percent of those who refuse to submit to the 

BAC test. According to the DMV’s Administrative Per Se Unit’s data 2,731 (75 percent) 

of the total 3,622 individuals who refused the BAC test in 2002 were first-time offenders. 

Assuming the ratio of first-time offenders to repeat offenders arrested remains the same 

each year and that the proportion of first-time refusers among all refusals remains 

consistent as well, data from 2001 DUI arrest records indicate that first-time offenders 

refuse the breath test 28 percent of the time while repeat offenders refuse the BAC test a 

slightly higher rate of 35 percent of the time. First-time offenders reportedly refuse often 

because they tend to be defensive at the time of their arrest and they are generally 

uninformed of the administrative consequences for refusal. Officers and defense 

attorneys as well as prosecutors report that first-time offenders generally do not know 

that the alcohol education program is available. They also do not know that after a firsttime offender completes the alcohol education program, the court will dismiss the 

criminal case a year later. 

6) Benefits of BAC Test Results 

 The BAC test results remove any doubt about the person’s intoxication while 

operating a motor vehicle. Cases with BAC test results are far less likely to be contested. 

When contested, cases with BAC test results are more likely to result in conviction than 

those without BAC test results. As several interviewees noted, it is easier to challenge 

testimony than the test. Obtaining BAC test results helps convict intoxicated drivers. 

7) Potential Strategies to Reduce BAC Test Refusals in Connecticut 

• Reduce the paperwork involved in DUI arrests as the current lengthiness of the 

process, which often takes two to three hours, encourages officers to rush through 

the BAC testing process so they can finish their paperwork. 

• It may also be possible to revise the A-44 form to include a description of the 

administrative sanctions for first-time offenders who take and refuse the BAC test 

and the option for the alcohol education program that results in dismissal of the 

charges. 

• Make refusal more severe for a repeat offender than taking the BAC test. The 

additional three months of administrative suspension for refusal for a repeat 
 23 

offender is not enough to deter refusals. The repeat offender stands a better 

chance against the criminal penalties by refusing the test, which currently 

outweighs any difference in sanctions imposed by the DMV. 

• Train and encourage officers to gather a broader set of evidence to support their 

DUI cases with the knowledge that the person could refuse the test. This includes 

getting more behavior indicators and following up the arrest with a more in-depth 

investigation. For example, officers could go to the locations where the person 

may have been drinking and interview bartenders and hosts of parties for 

information on how many drinks the person had and what they looked like when 

leaving. In addition, videotape the breath testing process to provide judges and 

prosecutors with supporting evidence of the person’s behavior. Better evidence 

will mean that BAC test refusal provides no advantage to the defendant in court. 
 24 

2. Maryland 

Maryland’s breath test refusal rate was 29.1 percent for 2001. 

1) The System 

 Maryland has a two-tier system for impaired driving offenses: driving under the 

influence (BAC ≥.08; called “A” offenses) and driving while impaired (BAC <.08; called 

“B” offenses). 

 Maryland allows Probation Before Judgment (PBJ), under which offenders may 

be given one year of probation with alcohol education; upon successful completion the 

driver’s record is cleared so there is no record of a prior alcohol offense. 

Cases are prosecuted and adjudicated at the county level. Practices vary 

substantially by county and sometimes by individual judges and prosecutors within a 

county. 

 Maryland has administrative per se with license suspension for BAC ≥.08. 

Offenders have the right to a hearing before an Administrative Law Judge (ALJ). The 

ALJ can dismiss the suspension or can modify the suspension to allow driving to work, 

school, alcohol treatment, or other purposes. 

 Test refusal results in administrative license suspension for 120 days for first-time 

offenders and 1 year for repeat offenders, which again can be appealed to an ALJ. 

Driving to work or other purposes may be allowed under the condition that the driver 

uses an alcohol interlock. Test refusal suspensions are in addition to any criminal 

penalties that may be applied. 

 Penalties increase for repeat offenders (defined as a second or subsequent offense 

within 5 years) and for drivers transporting a minor. Penalties are not increased for 

drivers with high BAC levels -- Maryland does not have a high-BAC aggravated DWI 

law. 

Tables 7 and 8 summarize the administrative and criminal penalties. The only 

“mandatory” minimum penalty is 5 days in jail or 30 days community service for a 

second “A” offense within 5 years. 
 25 

Table 7. 

Maryland Administrative Driver’s License Sanctions 

 

Blood Alcohol Level 

First Offense Second 

Offense 

Third 

Offense 

Refusal to submit to a blood, 

breath or urine test 

120 days or 1 year 

interlock 1 year 1 year 

Test results under .08 

(B) 

None None None 

Test results of .08 or higher 

(A) 

45 days; may get 

modification for 

work, etc. 

90 days; may 

get 

modification 

for work, etc. 

90 days; may 

get 

modification 

for work, etc. 

Table 8. 

Maryland Criminal Penalties

 

Type of 

Penalty First Offense Second Offense Third Offense 

Fine Under .08(B) - $500 

.08 or over(A)-$1,000

Under .08(B) - $500 

.08 or over(A) - $2,000 

Under .08(B) - $500 

.08 or over(A)-$2,000

Jail 

Under .08(B)-60 days 

.08 or over(A)-1 year 

Under .08(B)- 1 year 

(5 days and, if within 5 

years of first, or 

community service) 

.08 or over(A) - 2 years 

Under .08(B)- 1 year 

.08 or over(A) – (10 

days mand. If within 

5 years or community 

service) 3 years 

Driver’s 

License 

Suspension 

Under .08(B) – 60 

days suspension 

.08 or over(A) – 

6-month revocation 

Under .08(B) - 120 

days suspension 

.08 or over(A) – 

1-year revocation 

Under .08(B) – 120 

days suspension 

.08 or over(A) – 

1-year revocation 

Probation 

Before 

Judgment 

Yes No No 

Community 

Service None 30 days in lieu of jail 60 days in lieu of jail 

2) How the System Works 

 Both criminal and administrative consequences of a DWI arrest vary considerably 

by jurisdiction. It is believed that drivers generally receive more severe sanctions in rural 

counties. 

 First offenders almost always have their criminal charges pled to “B” regardless 

of whether or not they took a BAC test or what their BAC level was. They then almost 
 26 

always receive PBJ. This means they will have no DWI prior record if they complete 

their probation satisfactorily, only a record of the PBJ. Administratively, first time 

offenders receive no suspensions with a BAC < .08 (unless they have 4 or more points on 

their driving records already); a 45-day suspension with a work modification with a BAC 

≥ .08. If a first-time offender refuses the breath test, they receive either a 120-day 

suspension or a 1-year interlock requirement. 

 Since PBJs are not recorded as DWI priors, a second offense within 5 years of a 

PBJ is thus considered a first DWI offense. In theory, drivers cannot receive a second 

PBJ, but some do. Usually, though, these second offenses are pled down to a “B” and 

receive a fine and probation. Only with a third offense are jail or community service 

typically imposed. Administratively, the second offense will in fact be identified as a 

second offense. Drivers over .08 will receive a 90-day suspension, perhaps with a work 

permit modification and perhaps not. Drivers who refuse will receive a 1-year 

suspension, perhaps with the option of driving with an interlock, perhaps not. 

 The administrative portion of the system appears to work well, with fairly certain 

penalties. The criminal portion is driven by the PBJ option. Some believe that PBJ is 

applied far too frequently. PBJ’s most contentious feature is that the offender has no 

record of this “first” offense. This feature of PBJ would be far more acceptable to its 

critics if it was permanently recorded as a prior alcohol-related offense, so that a 

subsequent arrest could be charged as a second offense. 

3) How BAC Tests are Requested and Administered 

 Drivers arrested on an impaired driving charge are taken to a police station or 

equivalent facility where they are asked to provide a breath test. A breath test is used 

unless the driver is injured and unable to provide a breath test or unless breath test 

equipment is not available. The driver must take the test within two hours of the request. 

A driver who fails to take the test within the two-hour period is considered to have 

refused. A driver who fails to cooperate with testing procedures, such as by not providing 

a satisfactory breath sample, also is considered to have refused. A driver has the right to 

consult with an attorney before deciding whether or not to take the test. 

 Maryland has a form DR-15, Advice of Rights, located in Appendix D, which 

attempts to explain the implied consent law and the consequences of taking or refusing 

the test. Arresting officers must read or explain the form to arrested drivers when they 

request the test, and both the officer and the driver must sign the form. The form is a full 

page of about 9-point type and is difficult to understand; it is detested by almost 

everyone. However, if officers attempt to explain the form and the possible consequences 

of taking or refusing the test in their own words, they can be attacked in court, so many 

officers just read the form. 
 27 

4) Advantages of Taking or Not Taking a Breath Test 

 From their vantage point, first-time offenders benefit from taking the breath test 

because of the relative outcomes. Even if they fail the test, they almost always will 

receive a PBJ with at most a 45-day suspension and a work permit compared to the 120-

day suspension they would receive if they refuse. In addition, their insurance companies 

will find out about refusals and will raise insurance rates about $2,000 a year for three 

years. PBJs have no effect on insurance rates because insurance companies do not learn 

about them. Many defense attorneys advise first offenders to take the test. 

 Second offenders benefit from refusing the test unless they are sure they are under 

.08. If they refuse, they typically will be pled to a B (under .08) and charged as though 

they were a first offender. They cannot (in theory) receive a PBJ, but they will receive 

relatively light B-level penalties. If they take and fail the test, they may face the more 

severe A-level penalties. 

5) Who Takes and Who Refuses a BAC Test 

 It is believed that many first-time offenders are scared, confused, not thinking 

straight (they have been drinking, perhaps quite a lot), perhaps intimidated by law 

enforcement, and do not clearly understand the consequences of refusing or taking the 

test. The DR-15 form doesn’t help. Most first-time offenders do not have an attorney they 

can call in the two-hour window after they’ve been asked for a test. As a result, some 

first-offenders refuse the test out of confusion or general suspicion of authority. Repeat 

offenders have more knowledge of the system, the possible consequences of taking or 

refusing the test, and the likelihood that the penalties will in fact be applied. Repeat 

offenders are more likely to get an attorney’s advice. Repeat offenders also face more 

severe criminal penalties and may have learned that license suspensions for refusal are 

difficult to enforce. So many repeat offenders refuse the test. 

 Attorneys’ advice varies. Some will advise first offenders to take the test and 

repeat offenders to refuse. Some will advise everyone to refuse on the grounds that 

drivers should not cooperate in any way with the arresting officer. Others may advise 

everyone to take the test and then attack the testing process (chain of custody, breath test 

instrument calibration and function, etc.). 

6) Benefits of BAC Test Results 

 BAC test results assist in obtaining DWI convictions and may help to identify 

problem drinkers. Many, perhaps most, prosecutors will plea a DWI down to a “B” 

offense if there is no BAC result: conviction is far easier with a high BAC test result in 

evidence. High BACs also allow judges to include alcohol problem screening and 

treatment as part of the driver’s sentence. Some judges assume that repeat offenders are 

likely to have an alcohol problem and should be screened, but first offenders with alcohol 

problems likely are not identified without a BAC test and a high BAC reading. 
 28 

7) Potential Strategies to Reduce BAC Test Refusals in Maryland 

• Provide better information to drivers, especially first-time offenders and drivers 

under the age of 21, on the consequences of refusing or taking the test. 

First-time offenders are almost always better off taking the test than refusing it, 

even if they have a high BAC. If first-time offenders knew that refusal likely 

would result in a 120-day suspension and $6,000 additional insurance costs, while 

taking the test probably would result only in a 45-day suspension with a work 

permit, no criminal record after PBJ, and no insurance costs, then virtually all 

first-time offenders would take the test. 

The issue is how to convey this information accurately since it describes “what 

usually happens,” not “what the law allows,” and might be interpreted as saying 

that “first offenders always get off with PBJ and escape any meaningful 

penalties.” To avoid this, the message could emphasize the penalties for refusal. 

Some possible methods for publicizing these penalties include: 

a. Revise the DR-15 form so it is clear, understandable, and written in plain 

English. 

b. Advise newly-licensed drivers in driver education classes, driver licensing 

ceremonies, and perhaps even on the driver’s license itself, that they have 

consented to a BAC test if requested and that refusal will result in a long 

license suspension. 

• Provide incentives and training to law enforcement to encourage more tests. 

• Strengthen the DWI code to increase test refusal penalties for repeat offenders. 

First offenders face, and typically receive, substantially greater penalties for 

refusal than for taking and failing the test. But second and subsequent offenders 

do not, which is why most repeat offenders refuse the test. This is unlikely to 

change unless the penalties are increased. 
 29 

3. Florida 

Florida’s breath test refusal rate was 37.1 percent for 2001. 

1) The System 

 In Florida, DUI is punished by both pre-conviction administrative and postconviction criminal sanctions. 

 Pre-conviction licensing actions for DUI are 6 months’ mandatory minimum 

suspension for a first offense and 12 months for second and subsequent offenses. There 

are no post-conviction minimum revocation periods for a first offense, but drivers receive 

12 months for a second conviction within five years, 24 months for a third conviction 

within 10 years, and permanent revocation for the fourth conviction. A hardship license is 

available following mandatory minimum suspensions. A DWI offender's vehicle is 

subject to forfeiture if, at the time of the offense, the person is driving on a suspended or 

revoked license for a prior DUI offense. 

 Florida has no diversion programs for DWI first offenders nor does it have 

anything like probation before judgment (PBJ). 

 At the time of conviction, there are mandatory minimum fines of $250 for a first, 

$500 for a second and $1,000 for third and subsequent DUIs. There is no mandatory 

minimum period of incarceration for a first offense, but it is 10 days (with 48 consecutive 

hours) for a second offense within 5 years, and 30 days for a third within 10 years (also 

with 48 consecutive hours). Enhanced penalties are available for high-BAC offenders 

(.20 or higher), although mandatory minimums are the same as for regular offenders. 

Additional sanctions include community service (50 hours minimum, although the court 

may substitute a fine of $10 an hour), substance assessment and treatment, victim impact 

panel (at the judge’s discretion), DWI school, and other assessments and surcharges. 

 Until July 2001, the only penalties for breath test refusal were administrative 

license suspensions. BAC test refusal now carries an administrative license suspension of 

12 months for a first refusal (instead of 6 months for the DUI) and 18 months for second 

and subsequent refusals. Since July 2001, second refusals are a class 1 misdemeanor, and 

offenders can receive additional court-ordered sanctions upon conviction. It is difficult to 

predict what the penalties will be for misdemeanor refusal because there are no 

mandatory minimums and very little case law. 

Tables 9 and 10 summarize the administrative and criminal penalties. 
 30 

Table 9. 

Florida Administrative Driver’s License Sanctions 

 

Blood Alcohol Level First Offense Second 

Offense Third Offense

Refusal to submit to a blood, 

breath, or urine test 

12 month 

suspension 

(same for under 21) 

18 month 

suspension 

(misdemeanor) 

18 month 

suspension 

(misdemeanor)

Test results of .08 or higher 6 months 1 year 1 year 

Table 10. 

Florida Criminal Penalties

 

Type of 

Penalty First Offense Second Offense Third Offense Fourth Offense 

Fine $250-$500 

$500-$1,000; 

BAC .20 or 

higher up to 

$5,000 

$1,000 -$2,500; 

BAC .20 or 

higher up to 

$5,000 

$1,000; 

mandatory. 

BAC .20 or 

higher up to 

$5,000 

Jail 

Up to 6 

months; 

BAC of .20 or 

higher, up to 9 

months 

10 days 

mandatory (with 

48 consecutive 

hours)-9 months 

if BAC .20 or 

higher, up to 12 

months 

30 days 

mandatory 

(with 48 

consecutive 

hours) 

30 days 

minimum; 

BAC .20 or 

higher, up to 1 

year 

Driver’s 

License 

Suspension 

None; 

Can receive 

10-day vehicle 

impoundment 

1 year 

revocation; 30-

day vehicle 

impoundment 

2 year 

revocation; 

90-day vehicle 

impoundment 

Permanent 

revocation; 

90-day 

vehicle 

impoundment 

Community 

Service, etc. 

Up to 50 hours 

or fine of $10 an 

hour), substance 

assessment and 

treatment, etc. 

If BAC .20 or 

higher, above 

mandatory 

Up to 50 hours 

or fine of $10 an 

hour), substance 

assessment and 

treatment, etc. 

If BAC .20 or 

higher, above 

mandatory 

Up to 50 

hours or fine of 

$10 an hour), 

substance 

assessment and 

treatment, etc. 

If BAC .20 or 

higher, above 

mandatory 

Up to 50 

hours or fine of 

$10 an hour), 

substance 

assessment and 

treatment, etc. 

If BAC .20 or 

higher, above 

mandatory 

2) How the System Works 
 31 

 The administrative suspension process starts when the law enforcement officer 

lifts the suspect's license after the suspect either refuses a breath test or takes it and fails. 

The case is then classified either as a Refusal or DUBAL (Driving with Unlawful Blood 

or Breath Alcohol) and is entered into the Department of Highway Safety and Motor 

Vehicles (DHSMV) system as one or the other. Before offenders are released by police, 

they are given a packet that contains a citation and suspension (including a 10-day 

driving permit), a Probable Cause Affidavit, and a Refusal Affidavit. The packet instructs 

the subjects that they may request a review of the license suspension, but must make the 

request within 10 days. The offender is given a choice of either an informal or formal 

review. 

 Offenders represent themselves at informal reviews. The offender and the hearing 

officer examine the paperwork submitted by police for errors in fact, and the hearing 

officer decides whether to sustain or overturn the suspension. Informal reviews, by law, 

must be completed within 20 days of the arrest. Generally, the reviews are scheduled 

within 10 days because the driver cannot legally drive after that period. 

 Formal reviews are more intense, and must be completed within 30 days of the 

arrest. The offender may be (and usually is) represented by an attorney. The offender is 

allowed to request subpoenas of material witnesses, who can be cross-examined at the 

hearing by the defense attorney. One defense attorney says he always advises clients to 

request a formal review, because he is able to overturn the suspension in 7 of every 10 

cases and he gets "free discovery" of the case police have against the client. The DHSMV 

estimates that 25 to 30 percent of suspended drivers request formal reviews and that 

about 35 percent of the formal reviews result in the overturn of the suspension. The 

overall impact is that 10 to 12 percent of DUI-related suspensions are overturned. The 

DHSMV generally grants a hardship permit allowing the subject to drive until 12 days 

past the date of review. If there has been a prior breath test refusal, however, the subject 

is not entitled to a hardship permit under any circumstance. 

 While the administrative suspension process proceeds, the DUI prosecution takes 

an independent course through the courts. The administrative hearing has no bearing on 

the criminal process. 

 Because the volume of DUI cases is huge, a high proportion of cases are resolved 

pretrial. There is general agreement that almost all cases charged by police are 

prosecuted. Most are resolved by guilty pleas, some are pled down to reckless driving, a 

few are tried in court and very few are dismissed. (Statistics were not available.) 

Prosecutors and defenders agree that the overall strength of the State's case is the primary 

factor that determines pretrial disposition. The skill and level of effort by defense counsel 

also are acknowledged by both prosecutors and defenders as major factors. There also is 

agreement that presence or absence of breath test evidence is not very important in the 

pretrial phase, because there are many other factors that can weaken a case. In Miami, 

which is not necessarily representative of the rest of the State, there is a powerful 
 32 

incentive for first-time offenders to plead guilty, since a 30-day jail sentence is generally 

imposed at trial and it is suspended if the defendant pleads guilty. 

 Misdemeanor refusal for repeat offenders is charged separately from DUI. In the 

year since the law became effective, few second refusal cases have come to trial. At 

present, no statistics are available on how many people have been charged with a second 

refusal. Police may miss some repeat offenders who qualify for the charge, because the 

driving record information the police routinely access does not show prior refusals. 

However, prosecutors do get the information that would identify prior refusals and the 

charges could be initiated by prosecutors if they chose to do so. At the time of this report, 

the state attorney who drafted the law was trying a case in which motions had been filed 

citing fourth, fifth, and sixth amendment issues as well as Miranda problems. All of these 

issues had been researched prior to the passage of the legislation. The original intent of 

the bill's sponsors was that the law should apply to all refusals. It was amended in the 

legislative process to cover only second and subsequent refusals. 

3) How BAC Tests are Requested and Administered. 

 Breath tests are administered only after the suspect has been placed under arrest 

for DUI. Usually the suspect is asked to take the test after having performed a roadside 

Field Sobriety Test and having been transported to a central testing facility. There are 

exceptions when a mobile breath testing facility is available for checkpoints, or when 

there has been a crash that caused serious injuries to the suspect and/or someone else. In 

an injury crash involving others, police may force a blood test. 

 Breath tests may be administered only by operators certified by the Florida 

Department of Law Enforcement. In many cases the breath test operator is not the 

arresting officer, and in a few cases, the breath test operator is a civilian. Either the 

arresting officer or the breath test operator can request the breath test. In most places, the 

implied consent warning is read to the suspect only if the offender refuses. After being 

read the warning statement, the offender is asked again. The offender and the police 

officer who read it must sign the form to acknowledge that the warning was read. At least 

one county court requires that the implied consent warning be read before asking the 

suspect to agree to the test. The law enforcement officers in that jurisdiction, as well as 

State troopers, read the implied consent form first as a matter of standard procedure. 

Some officers feel they would get fewer refusals by just asking. The language of the 

warning is about as simple and clear as a legal document can be. It emphasizes the 

license suspension penalties for refusing and advises that a second refusal is a crime. 

4) Advantages of Taking or Not Taking a Breath Test 

 From the vantage point of the offender, the only circumstance in which it is 

certain that it will be to an adult driver's advantage to submit to a BAC test is when the 

driver is sure that the BAC is under .08. A first-time offender that agrees to the test and 

fails it will, upon conviction, be suspended for 6 fewer months, but will usually need to 

pay fines and fees, be put on probation, required to perform community service, sent to 
 33 

DUI school, and required to pay for alcohol assessment and perhaps treatment. The 

severity of the longer refusal suspension is diminished by the possibility that it can be 

overturned and that a hardship permit will be granted. (Hardship permits are available 

only when there is no prior refusal in the record.) Both prosecutors and defense attorneys 

agree that the consequences of refusal are less severe than the consequences of 

conviction, even for a first offense. 

 Addition of a misdemeanor refusal charge for defendants with a prior refusal 

could possibly equalize the penalties somewhat for repeat offenders, but it is too early to 

tell whether the penalties actually imposed upon conviction will approach those for repeat 

DWI convictions. 

 Minors who take the breath test and fail get a 6-month suspension while refusals 

result in a 1-year suspension, making it relatively more attractive to take a breath test. 

Also, suspension might be viewed as being a more important consequence relative to 

other sanctions by youthful drivers than by adults. The significantly reduced penalties for 

taking and failing a BAC test compared to refusal may be the reason why refusals are 

significantly lower among minors than adults. 

5) Who Takes and Who Refuses BAC Tests? 

 As noted, there is a vast difference in the refusal rate between minors and adults. 

In 2002, the refusal rate was only 6 percent for minors versus 38 percent for adults. 

 There are no statistics on demographic or economic characteristics of people who 

refuse versus people who submit to the test. Some experts venture that people who refuse 

tend to be upscale economically and generally more educated and sophisticated. Others 

say you just can't predict who will submit and who will refuse. Everyone seems to agree 

that most of the people who refuse have been advised to do so by a defense lawyer or the 

advice has passed on by someone they know who has been arrested for a DUI. 

 Defense attorneys complain that the implied consent statement does not give 

defendants the full information they need to make an informed decision, saying nothing 

about the consequences of a DWI conviction, concentrating only on the sanctions for 

refusal. 

6) Benefits of BAC Test Results 

 With the exception of defense attorneys, everyone involved in the DUI 

sanctioning process agrees that a higher rate of breath test submittal would have great 

benefit. Law enforcement officials feel that more breath tests will assure that a higher 

percentage of offenders are punished. Prosecutors would like a higher proportion of 

defendants to be tested because it probably will increase the proportion of guilty pleas as 

it is more difficult for defenders to win at trial when the level of intoxication is known. 

That means fewer trials, and prosecutor's offices are always overworked and 

understaffed. It is believed that alcohol tests also help judges to make the right sentencing 
 34 

decisions upon conviction, helping to identify problem drinkers and mandate the most 

appropriate combination of sanctions and treatment. 

7) Potential Strategies to Reduce BAC Test Refusals in Florida 

 Increase the public’s perception that the relative penalties for refusing a BAC test 

are more severe than the penalties for taking and failing a BAC test. If the public has the 

view that administrative license suspensions are easy to beat, the deterrent value of the 

increased administrative sanctions for refusal is greatly diminished. 

 Therefore, the recommendations are to: 

• Upgrade the knowledge and confidence of suspension hearing officers. Florida’s 

DUI Technical Advisory Committee has discussed the administrative hearing 

process in the past. Part of the problem appears to be that many hearing officers 

are non-lawyers, and some may be intimidated by highly qualified defense 

attorneys. The only educational qualification for the position is a high school 

diploma. DHSMV has made an increased effort to train hearing officers in the 

relevant law to ameliorate the situation, but it has a way to go. Perhaps increasing 

funding and revising the requirements for hearing officers to hire attorneys as 

hearing officers and increased resources or more legal training for current hearing 

officers would be money well spent. Some States hire qualified attorneys to 

become hearing officers on an hourly basis. That solution may work in Florida. 

• Increase police training to effectively represent DUI and refusal cases in 

suspension hearings. The arresting officers are the only individuals allowed in 

DHSMV license suspension reviews who represent the State's interest. Although 

Institute of Police Technology and Management has made an effort to train police 

officers on how to represent their cases in administrative license suspension 

hearings, not enough officers are trained. Increased funding to make the training 

more widespread might also be a good investment. The added training could be 

more specialized, along the lines of trial advocacy training for new prosecutors. 

Added training could turn arresting officers into “police prosecutors" when they 

appear in formal license suspension hearings. 

 There is some hope that the recently passed law making second refusals a 

misdemeanor will evolve into an effective deterrent to breath test refusal among repeat 

offenders, who probably are more likely to refuse than first offenders. Certainly, when 

the constitutional issues have been tested, a misdemeanor refusal case will be much easier 

to prosecute than a DUI. If the courts impose penalties for second refusals that are as 

severe as the penalties imposed by the court for an actual DUI conviction, the increase in 

the relative benefits of taking and failing the test as compared to refusing the test will 

likely lead to defense attorneys advising their clients to take the test. 
 35 

 Police and prosecutors should make special efforts to bring as many misdemeanor 

refusal cases to trial as possible to reinforce its effect as an effective penalty and 

deterrent. Changing the driving record information system to make it easier for police to 

identify and charge offenders with second refusals would also increase the efficacy of the 

new law. 
 36 

4. Louisiana 

Louisiana’s breath test refusal rate was 45.9 percent for 2001. 

1) The System 

 After arrest, the person must submit to a BAC test within a reasonable amount of 

time after operating the motor vehicle. There is a 15-minute observation period before 

administering the breath test. The person has no right to contact a lawyer before either 

submitting or refusing to take the breath test. The arresting officer is required to inform 

the person of the consequences of refusing to submit to a BAC test. The offender is 

permitted to refuse the test unless the offender was involved in a crash where a fatality or 

bodily injury occurred. If the person does not provide an adequate breath or urine sample 

when requested and refuses to submit to a blood test, the officer or trooper records it as a 

refusal. Refusals are admissible in court, but not criminalized. There was a bill 

introduced, but not passed, in 2003 at the State legislature to criminalize BAC test 

refusal. It will reportedly continue to be introduced each year during regular sessions 

until passage. 

 Louisiana had an administrative per se license suspension for anyone with a BAC 

≥ .10. As of September 30, 2003, the per se BAC decreased to ≥.08. Offenders must 

schedule a hearing with the Department of Motor Vehicles (DMV) regarding 

administrative license suspension within 15 days of arrest. If the offender does not 

schedule a hearing, the DMV issues the appropriate license suspension. 

 Louisiana offers a pretrial diversion program for those arrested for DWI. The law 

relating to pretrial diversion programs does not restrict pretrial diversion to first-time 

offenders. Entrance into the program is at the discretion of the district attorney and the 

court. There are 35 pretrial diversion programs operating in Louisiana. The Grant parish 

district attorney-run program includes a 1-year probation and requires activities such as 

community service, counseling (e.g., anger management, alcohol, drug counseling, going 

to talk to a victim impact panel put together by MADD), and/or restitution. If the 

offender completes the program, the prosecuting authority maintains a record for five 

years of the person’s successful participation in the program and makes that record 

publicly available. 

 First-time offenders who submit to a BAC test are eligible for a work permit 

within 30 days of their 90-day administrative suspension. First-time offenders who refuse 

the BAC test must wait 90 days of their 6-month administrative suspension before they 

can get a work permit. The court has no jurisdiction over mandatory license suspensions 

in Louisiana resulting from convictions, but it does issue recommendations regarding 

suspensions. All suspensions, whether administrative or criminal, are under the control of 

the DMV. The courts can recommend actions regarding suspensions mandated by law 

that accompany convictions. In addition, the court can make violation of a suspension a 

violation of probation, which makes the suspension carry more weight. 
 37 

 Louisiana has criminal penalties and administrative sanctions that increase with 

the number of offenses and vary for those under 21 (zero tolerance law), and those with a 

BAC ≥.15. First- and second-time offenders fall under the jurisdiction of local courts 

while third- and subsequent offenders fall under the jurisdiction of State courts. 

Tables 11 and 12 summarize the administrative and criminal penalties and table 13 

summarizes the criminal penalties for those under 21. 

Table 11. 

Louisiana Administrative Driver’s License Sanctions 

Blood Alcohol Level First 

Offense 

Second 

Offense 

Third 

Offense 

Fourth 

Offense 

Refusal to submit to a blood, 

breath, or urine test 

6-month 

suspension 

1-year 

suspension 

1.5-year 

suspension 

1.5-year 

suspension 

Refuse to submit and you are 

under 21 180-day 

suspension 

1.5-year 

suspension 

1.5-year 

suspension 

1.5-year 

suspension 

Test results of .02 or higher 

and you are under 21 180-day 

suspension 

1-year 

suspension 

1-year 

suspension 

1-year 

suspension 

Test results of .10 or higher (.08 

as of September 30, 2003) 

90-day 

suspension 

1-year 

suspension 

1-year 

suspension 

1-year 

suspension 
 38 

Table 12. 

Louisiana Criminal Penalties for those 21 or older 

Type of Penalty First Offense 

Second Offense 

(within 10 

years) 

Third Offense 

(within 10 years 

of last 

conviction) 

Fourth 

Offense 

(within 10 

years of last 

conviction) 

Fine $300 - $1,000 $750 - $1,000 $2,000 $5,000 

Jail 

10 days - 6 

months; 

suspension if 

probation with 

minimum 2 days 

in jail (If .15 or 

higher, 

mandatory 48 

hours in jail) 

48 hrs 

mandatory jail 

of a 1-6 month 

jail term 

1-5 years with or 

without hard 

labor (6 months 

mandatory) 

2 years 

mandatory 

Driver’s License 

Suspension 

90 days 

(hardship 

provision) 

90 days 

(hardship 

provision) 

24 months (no 

hardship 

provision) 

2 years (no 

hardship 

provision) 

Substance abuse 

Program Yes Yes Yes Yes 

Driver 

Improvement 

Program 

Yes Yes Yes Yes 

Community 

Service Program 

4 8-hr. days 

(minimum) 30 8-hr. days Auto may be seized and sold 

Auto may be 

seized and sold 
 39 

Table 13. 

Louisiana Criminal Penalties for those under 21 

Type of Penalty First Offense 

Test results of .02 or higher 

Second Offense 

Test results of .02 or higher 

Fine $100-250 $150-$500 

Jail/Community Service No 10 days – 3 months (48 hours 

mandatory) 

Driver’s License Suspension No No 

Substance abuse Program Yes Yes 

Driver Improvement 

Program Yes Yes 

2) How the System Works 

 The administrative sanctions are fairly certain when the Department of Motor 

Vehicles (DMV) gets the arrest information from a parish and the paperwork is complete 

and accurate. Parishes do not always send DWI arrest information to the DMV, which 

means that administrative license suspension may not always occur. Local courts often do 

not share arrest and conviction information with each other or the DMV, so some first 

offense administrative suspensions could be the person’s second or third suspension. 

 The criminal penalties vary widely, with those cases where the person has refused 

the BAC test most frequently resulting in a reduction of the DWI charges and a plea to 

lesser charges. Most district attorneys want to get a guilty plea to at least one charge 

when a DWI arrest is made, so in cases where the offender has refused the BAC test, they 

often reduce the DWI charges to reckless driving or a first DWI offense for someone 

facing a second or third DWI offense. 

 Parish courts do not share information on DWI convictions, so some individuals 

can be convicted in several counties for a first offense. In addition, because local courts 

keep the fines for the first and second DWI convictions but do not have jurisdiction over 

third DWI offenses, they have an incentive to charge offenders with a first or second 

offense multiple times rather than charging the person with a third or subsequent offense 

and sending the person to a State court. 

3) How BAC tests are Requested and Administered 

 Officers and troopers use a standard form to inform those under arrest of their 

implied consent to take the BAC test. They explain the person’s right to refuse the test. 
 40 

They use a form to provide the information, but the form has changed quite a few times 

recently, which makes it difficult for officers to accurately communicate the implications 

of implied consent to offenders. 

 The BAC test must be administered in a reasonable amount of time after the 

operation of the motor vehicle. Although there are no requirements that the person 

administering the breath test be certified on the machine, most officers and troopers in the 

State are trained and certified on the Intoxilyzer 5000. The arresting officer usually 

administers the test unless a blood test is requested. 

 In one parish, the judge has reportedly issued warrants in some cases to force 

offenders refusing to submit to the breath test to either submit to the breath test or have 

blood drawn for BAC testing. 

4) Advantages of Taking or Not Taking a Breath Test 

 From the vantage point of an offender, all offenders, regardless of whether it is 

their first time, benefit from refusing the BAC test. Without test results, the district 

attorney has a much more difficult time getting a conviction for DWI. Police often rely 

upon the test results and do not always write reports that provide district attorneys with a 

good case without the BAC test results. 

 When an offender submits to a test and “fails,” prosecution is automatic in most 

cases. Refusals are sometimes reduced to reckless driving or careless driving if there is 

little behavioral evidence of DWI. Prosecutors rarely dismiss cases completely, but they 

are far more likely to agree to guilty pleas to lesser offenses. 

 Repeat offenders often benefit from refusing the BAC test because it clouds the 

case just enough to give them a slight advantage in court proceedings. The administrative 

penalties are not severe enough to deter refusals by repeat offenders and their refusal 

greatly increases the likelihood of the charges being reduced in order to obtain a guilty 

plea. 

 Those who believe their BAC will be above .15 also stand to benefit from 

refusing because they cannot be convicted of DWI with a high BAC without the test 

results. Such convictions mean 48 hours of mandatory jail time on first and second DWI 

convictions. 

5) Who Takes and Who Refuses a BAC Test 

 Repeat offenders are somewhat more likely to refuse the BAC test, but first-time 

offenders refuse at a high rate as well. First-time offenders refuse the test 31 percent of 

the time and second offenders refuse 36 percent of the time. However, some offenders 

charged with a first-time offense in a parish may be repeat offenders who have a prior 

arrest, BAC test refusal, and DWI conviction in another parish. The lack of information 

sharing between parishes regarding DWI arrests, test refusals, and convictions means that 
 41 

when a person is arrested for DWI in a parish, that parish may not know of the offender’s 

DWI arrest, test refusal, and conviction history in other parishes. Affluent individuals and 

those over 29 are also more likely to refuse to submit to a BAC test. 

6) Benefits of BAC Test Results

 BAC test results make prosecution much easier and are far less likely to be pled 

down to lesser offenses. Judges want to know the BAC results because it helps inform 

their rulings and makes the case easier to decide. 

7) Potential Strategies to Reduce BAC Test Refusals in Louisiana 

• Issue a standing warrant in each jurisdiction for a blood sample for BAC testing 

for anyone who refuses to submit to the breath test. One judge has issued warrants 

frequently enough that the parish has a standard standing warrant template that 

they use for requesting forced BAC tests when necessary. The approach could be 

systematized and expanded to serve as a standing warrant for use when needed to 

force a BAC test. 

• Provide officers with more training on what to observe with regard to behavioral 

cues and require officers to write more extensive reports identifying all the 

behavioral cues that indicated intoxication at the time of arrest. Currently, officers 

rely largely on the BAC test results for their cases and do not submit complete 

behavioral descriptions. 

• Criminalize the BAC test refusal. There is currently a bill in the State legislature 

to criminalize the third refusal. 

• Take refusal cases to trial and publicize the case instead of reducing the DWI 

charges in cases of refusals in return for a plea of guilty to a lesser charge. Many 

district attorneys and judges do not take refusal cases to court because they stand 

less chance of a conviction. 

• Standardize the arrest paperwork involving the information that officers must 

provide to offenders before requesting the BAC test. The information varies 

across parishes and changes frequently. 

• Train district attorneys and judges on the subtleties of clinical cases of 

intoxication, those with BACs that are not high, but can involve impairment. The 

subtle behavioral cues in these cases make district attorneys less likely to try them 

and judges less likely to convict when a case is tried. 
 42 

5. Oklahoma 

Oklahoma’s breath test refusal rate was 38.3 percent in 2001. 

1) The System 

 Oklahoma has a three-tier system for impaired driving offenses. Driving under the 

influence (DUI), with a BAC of .06-.07 is often used to plea down DWI charges to some 

lesser charge such as reckless driving. Drivers with BACs < .06 are not charged unless 

they are under 21 or drugs other than alcohol are involved. Driving while intoxicated 

(DWI), with a BAC ≥.08 is called an “A” offenses. Finally, there is aggravated DWI, 

with a BAC ≥ .15. All DWI charges and first-time DWI charges are misdemeanors. A 

second-time DWI offense is a felony, permitting more severe penalties. 

 Oklahoma has 77 district courts and almost 400 municipal courts. District courts 

and Oklahoma City, Tulsa, and Lawton municipal courts are courts of record; the other 

municipal courts are not. The two systems operate independently and do not share 

records. Non-record municipal courts hear only misdemeanors. This means that for all 

practical purposes, any impaired driving arrest heard in a non-record court is considered a 

first offense regardless of whether the driver has been arrested or convicted of previous 

impaired driving offenses. Some drivers have accumulated more than 10 DUI convictions 

in one or more non-record courts without being charged with a second offense in a court 

of record. The arresting officer decides where to file charges. Municipal courts keep 

driver records for three years, while district courts keep them indefinitely. 

 Oklahoma has administrative per se with license suspension for BAC ≥.08. 

Offenders have the right to a hearing before a Department of Public Safety (DPS) 

attorney. The DPS attorney can dismiss the suspension or in some instances can modify 

the suspension to allow driving to work, school, alcohol treatment, or other purposes with 

the requirement that the driver use an interlock. 

 Test refusal results in administrative license suspension, which can be appealed to 

a DPS attorney. Again, the suspension may be modified in some instances to allow 

driving to work or other purposes if the driver uses an interlock. Test refusal suspensions 

are in addition to any criminal penalties that may be applied. 

Tables 14 and 15 summarize the administrative and criminal penalties available in law 

for DWI and DUI. 
 43 

Table 14. 

Oklahoma Administrative Driver’s License Sanctions 

Blood Alcohol Level First Offense Second Offense Third Offense 

Refusal to submit to a 

blood, breath, or urine test 

180-day 

suspension 1-year suspension 

3-year suspension. 

Work permit allowed 

after 1 year with 

interlock 

Test results under .08 

(DUI) None None None 

Test results of .08 or 

higher (DWI) 

180-day 

suspension; work 

permit allowed 

with interlock 

1-year revocation; 

work permits not 

allowed 

3-year revocation; 

work permit allowed 

after 1 year with 

interlock 

Table 15. 

Oklahoma Criminal Penalties 

Type of Penalty First Offense Second Offense Third Offense 

High BACAggravated 

Driving Under 

the Influence 

Fine Under .08 -$500 

.08 or higher -

$1,000 

Under .08 -$500 

.08 or higher -

$2,500 

Under .08 -

$500 

.08 or higher -

$5,000 

No additional 

fines 

Jail 

Under .08 – 6 

months 

.08 or higher- 10 

days – 1 year 

Under .08 – 6 

months 

.08 or higher- 1-5 

years 

Under .08 – 6 

months 

.08 or higher1-7 years 

None 

Driver’s License 

Suspension 

Under .08- 30 

days 

.08 or higher180 days 

Under .08 – 

6-month 

suspension 

.08 or over – 

1-year revocation 

Under .08 – 

6-month 

suspension 

.08 or over – 

3-year 

revocation 

30-day interlock 

Substance abuse 

Program None 28-day treatment; 

30-day aftercare 

28-day 

treatment; 90-

day aftercare 

28-day inpatient 

treatment; 1-year 

aftercare and 

periodic testing 

Community 

Service Program None None .08 or higher – 

240+ hours 

480 hours 

following 

aftercare 
 44 

2) How the System Works 

 The administrative consequences of an impaired driving arrest are fairly uniform 

across the State and are essentially the same for drivers who refuse and drivers who fail 

(BAC ≥ .08) the test: 180 days suspension for the first offense, with work permits 

possible if the driver uses an interlock; 1 year for the second offense with no work 

permits; and 3 years for the third with an interlock work permit allowed after 1 year. 

Previously the suspension for first-offense test failure was 90 days compared to 180 days 

for refusal. Now, the results of failing a BAC test are the same as those for refusing to 

take the test. 

 About 25 percent of the drivers whose licenses are suspended or revoked for 

refusing or failing the BAC test request an administrative hearing. The suspensions or 

revocations are upheld about 80 percent of the time a hearing is requested. Work permits 

are granted in about half of the hearings, which results in many drivers with suspended or 

revoked licenses receiving a work permit. Interlocks are required for most, but not all, 

drivers who receive work permits. 

 Administrative hearings have become an opportunity for defense attorneys to 

gather information from the arresting officer that can be used to defend the driver in the 

criminal action. Hearings are only authorized to explore specified subjects relevant to the 

administrative action, such as establishing that the driver was in fact driving the car and 

that law enforcement had appropriate justification to stop the car. But many of the DPS 

attorneys who run the administrative hearings often allow questioning outside these areas. 

 Criminal charges and penalties vary considerably depending on whether the case 

is heard in a municipal or district court or in a rural or urban area. In some rural areas, 

impaired drivers may routinely be charged only with reckless driving rather than DUI or 

DWI. 

 First-offenses are almost always pled down. Test failures are often pled to 

reckless driving, which is not recorded as an alcohol-related offense so it does not count 

as a prior. However, the DWI arrest is recorded. Thus, if the driver is arrested again, a 

good arrest record search may lead to the discovery of the previous DWI arrest and allow 

a repeat offense charge to be placed. First-time offenders who refuse the test often have 

their cases pled to DUI or to reckless driving. Penalties typically involve a fine, perhaps 

with an alcohol assessment and possible additional requirements such as community 

service or victim impact panel sessions. 

 Second and subsequent offenses also frequently are pled down in municipal 

courts. For example, in Tulsa City Court, refusals are pled to reckless and test failures are 

pled from DWI to DUI. In district courts, impaired driving is a low-level offense 

compared to other cases, so may be pled down or even dismissed. Some prosecutors are 

said to dismiss all test refusal cases. 
 45 

 Impaired-driving cases rarely go to trial. Experienced law enforcement officers 

report testifying in impaired driving cases “twice in 32 years” or “never in 13 years.” 

Officers testify in administrative hearings fairly frequently. 

3) The BAC Testing Process 

After a driver has been placed under arrest, the arresting officer requests a breath 

test. Requesting the breath test usually happens in the field, in the arresting officer's 

patrol car, but the breath test is not given until the person reaches the police station or 

jail. While in their vehicles, officers read an implied consent card to a driver after the 

drivers have been placed under arrest. The card informs the driver that a test is required 

and describes the penalties for refusing and for failing the test. The officer chooses 

whether to request a breath or blood test. In practice, officers request a breath test unless 

the driver has been taken to a hospital or emergency room and a blood test is more 

convenient. A test can be obtained by force from drivers involved in crashes with a 

serious injury or fatality, but this appears to be applied very rarely. The driver has the 

right to request an independent test. 

 The breath test is given in the police station or jail if the offender agreed to submit 

when asked at the scene of arrest. Most patrol officers are certified to operate the breath 

test equipment. If a driver refuses a test when first requested at the arrest scene, officers 

often will ask again at the station, and if the driver agrees at that point, the test is 

conducted. The test requires two separate breath test samples taken three minutes apart. If 

the driver gives the first sample but refuses the second, this is considered a refusal. 

Failure to cooperate with the test, for example by not providing a satisfactory breath 

sample, also is considered a refusal. Courts generally accept the officer’s word that the 

driver refused the test or was uncooperative during the test. 

 If an injured driver is taken to an emergency room or hospital, a law enforcement 

officer will go to the facility. Unless the driver is to be released immediately, the officer 

usually requests a blood sample. Hospitals routinely provide the sample. 

 A recent policy in Oklahoma jails requires a medical evaluation before admitting 

a person with a BAC over .25. This can be a substantial problem at night if medical 

personnel are not available. Even if they are, it adds another step and more time to the 

impaired driving arrest. To avoid it, some officers may not request a test if they suspect 

the driver is over .25. 

4) Advantages of Taking or Not Taking a Breath Test 

 From the vantage point of the offender, the administrative penalties are essentially 

the same for drivers who refuse and drivers who fail the BAC test. This means that a 

rational decision on whether or not to take the test depends on how the test result or the 

refusal may affect criminal proceedings. 
 46 

 Properly-licensed drivers over age 21 with a BAC less than .06 definitely benefit 

more by taking the test. With the BAC evidence to show that they are below the .06 limit, 

they will not be charged. If they refuse the test, their driver’s license almost certainly will 

be suspended. 

 First-time offenders with a relatively “low” BAC that is above .06 may benefit 

more if they take the test. If their BAC is less than .08 their license will not be suspended 

administratively. They may get a better deal in court since they have been cooperative 

and have demonstrated that they are “not too drunk,” while refusers may be seen as 

uncooperative and perhaps high-BAC. However, in jurisdictions where first offenders are 

routinely pled to reckless or to DWI, the results of taking or refusing the test may be 

about the same. 

 

 Drivers over the BAC limit of .08 probably would likely benefit by refusing. First 

offenders almost always will have their charges pled down, whether they refuse or fail. 

For drivers with a prior offense in a court of record, who face a second-offense felony 

charge, some prosecutors will plea down refusals more readily than cases with BAC 

evidence. Other prosecutors will proceed with refusal cases (one noted that about 70 

percent of impaired driving cases that go to trial have no BAC results). They note that the 

cases are harder to present without BAC evidence, especially if the arresting officer has 

not carefully recorded other evidence of impairment. Judges will treat refusal and BAC 

cases similarly, but juries will convict more easily with BAC data than with a refusal. 

Finally, refusals do not face aggravated DUI charges (BAC ≥ .15), which some 

jurisdictions use. (Many jurisdictions apply the aggravated DWI rarely or never.) 

 When asked for their personal advice if they or a friend were arrested for impaired 

driving, the law enforcement officers, prosecutors, and judges interviewed were virtually 

unanimous in advising anyone whose BAC might exceed .08 to refuse the test. Defense 

attorney advice was mixed. Some, probably the majority, would advise everyone to 

refuse, for the reasons noted above. Others would advise taking the test because the 

process of requesting and administering the test provides many opportunities to attack the 

prosecution: the “attack the breath test machine” strategy. 

5) Who Takes and Who Refuses a BAC test 

 It is believed that most first-time offenders take the test and most repeat-offenders 

refuse. Beyond this generalization, drivers who refuse the test tend to fall into one or 

more of the following categories: 

• Drivers with high BAC levels who fear the aggravated DUI penalties; 

• Unlicensed drivers or illegal aliens, for whom a license suspension is irrelevant; 

• Drivers who have been advised by an attorney to refuse the test, or who are 

suspicious of law enforcement; 

• Drivers who are confused, uncooperative, or too impaired to function properly. 
 47 

6) Benefits of BAC Test Results 

 BAC test results help in charging drivers properly, in obtaining convictions, and 

identifying problem drinkers who should be assigned to treatment. In particular, BAC test 

results are essential to charging a driver with aggravated DUI. 

 However, BAC test results do not appear to be critical to Oklahoma’s impaireddriver control system. They appear to influence plea bargains and court verdicts 

somewhat, but not substantially. Many prosecutors and judges dislike the aggravated DUI 

statute and will not apply it. The general feeling is that a higher testing rate would not 

change Oklahoma’s DUI prosecution, adjudication, or sentencing much. Unlicensed 

driving -- drivers with a suspended or revoked license, or illegal aliens who have never 

been licensed -- is seen as a substantially greater problem than BAC test refusals. 

7) Potential Strategies to Reduce BAC Test Refusals in Oklahoma 

 Law enforcement, prosecutors, judges, and defense attorneys alike had two main 

recommendations. 

• Reduce the amount of time required to process a DUI arrest. One officer noted 

that “DUI is the most labor-intensive misdemeanor, all the way from the arrest to 

the court.” The new Intoxilyzer machines being introduced statewide may reduce 

processing time somewhat as they will check for errors and print affidavits. 

One specific obstacle to BAC tests for high-BAC drivers is the requirement for a 

medical evaluation before admitting a person with a BAC over .25 to jail. Law 

enforcement officers need to know where to go for this evaluation at any time of 

the day or night. 

• Change Oklahoma’s laws so that the penalties for refusing the test are again 

greater than the penalties for taking and failing the test. 

Most people interviewed pointed out that test failure penalties are now “the same” 

as test refusal penalties -- 180 days’ suspension for a first offense -- while 

previously the penalties for failure were less -- 90 days’ suspension. The standard 

comment was “There’s now no incentive to take the test.” Everyone’s first 

recommendation to reduce refusals was to change the law so that refusal penalties 

are again more severe than failure penalties. If law changes are considered, they 

should be examined very carefully to avoid unintended consequences. Many 

people interviewed felt that the current one-year hard suspension or revocation 

(no work permits allowed) for second-felony offenders was unreasonably harsh: 

it prevents offenders from driving to work and consequently encourages driving 

with a suspended license. 
 48 

V. Conclusions 

It is believed that many first-time offenders refuse the test because they do not 

understand the consequences – State officials may want to review their process for 

notifying suspects of both the administrative and criminal consequences of refusing to 

provide a breath sample to ensure that suspects fully understand the implications of not 

providing a breath sample. 

There are three States, Maryland, Connecticut, and Louisiana, for which specific 

recommended strategies are likely to reduce the breath test refusal problem within 

existing legislation. There are no specific recommendations for Oklahoma and Florida 

likely to reduce refusal rates without new legislation. 

A. Connecticut and Maryland

 The administrative benefit of submitting to a breath test in each State is getting a 

work permit during the entire license suspension period instead of waiting 90 days in 

Connecticut or 120 days in Maryland, after which the offender must install and use an 

ignition interlock device for a year. Both States offer alcohol education programs and 

probationary periods after which the criminal cases are dismissed for first-time offenders. 

First-time offenders get much easier treatment from the administrative system if they 

submit to a breath test. With a hardship permit, they can continue driving throughout their 

suspensions. In addition, they receive the same, minimal criminal penalties as those who 

refuse. 

 

 First-time offenders constitute 75 percent of all those who refuse the breath test in 

Connecticut and reportedly constitute a large proportion of those who refuse the breath 

test in Maryland. Decreasing refusals for this population would have a major impact on 

breath test refusal rates in the State. Some small number of individuals with BACs well 

under .08 would be identified if submission rates increase because they likely constitute a 

small proportion of those refusing the breath test. Thus, the number of individuals 

released from custody after a breath test may increase slightly when refusals decrease. 

 Explaining the benefits of submitting to the breath test to those impaired by drugs 

other than alcohol is not likely to decrease their refusal rates. Officers generally ask for a 

urine test if an offender appears impaired but the person does not produce breath test 

results close to or over .08. In such cases, officers immediately suspect non-alcohol drug 

impairment. 

 When first-time offenders submit to the breath test, they receive fewer penalties 

than those who refuse. Reducing the refusal rates raises the consideration of whether it is 

better that they receive less severe penalties for submitting than for refusing the test. 

There certainly are several benefits of knowing the BAC results for those arrested for 

drinking and driving. The benefits include: 1) more efficient and effective prosecution of 
 49 

cases, 2) a better understanding of the drinking and driving problem both locally and 

statewide to inform legislation and public policy, and 3) possible identification of 

problem drinkers so they can be helped. 

 

B. Louisiana

 The solution most likely to reduce breath test refusals for Louisiana, and any other 

States with similar laws permitting forced blood tests, is obtaining a warrant from a 

judge, when needed, to draw blood for a BAC test. Warrants could be obtained for as 

many types of DWI arrests as judges would be willing to issue a warrant. Such types of 

cases could include cases where the driver had a minor in the vehicle, cases where the 

driver is suspected of having a BAC above .15, or cases where a driver under arrest was 

in a crash in which there was a possible injury. Warrants are already used in at least one 

jurisdiction in Louisiana. The extent of their use within that jurisdiction is not known, but 

they have the potential for more widespread use in cases where they were issued. 

Louisiana has a very high refusal rate and many cases without breath test results do not 

result in first and subsequent DWI convictions. 

 The criminal cases of all offenders, whether first-time offenders or repeat 

offenders, currently benefit greatly from refusing to submit to a breath test. Therefore, the 

solution most likely to effectively reduce refusal rates for at least some portion of those 

refusing the test is to obtain a warrant to force a BAC test if the person refuses. 

C. Oklahoma and Florida

 There do not appear to be any specific, viable strategies to reduce breath test 

refusal rates in Oklahoma and Florida without new legislation. Both States have lesssevere combined administrative and criminal penalties for refusal than for those who 

submit to a breath test and fail. The parity of the administrative sanctions for those who 

submit and those who refuse, combined with the increased likelihood that refusals lead to 

plea bargains, makes refusal the more beneficial option for any offender in Oklahoma and 

Florida. 

 The current refusal rate would most likely change with a legislative change with 

new legislation that increases the severity of administrative and criminal penalties for 

refusing as compared to the penalties for taking and failing a BAC test. Such changes 

would tip the balance of benefits to the side of those taking the BAC test rather than those 

who refuse the test. For now, offenders in Florida and Oklahoma currently benefit far 

more by refusing a BAC test. 
 50 

VI. REFERENCES 

Hedlund, J.H., Ulmer, R.G. and Preusser, D.F. (2001). Determine Why There Are Fewer 

Young Alcohol Impaired Drivers. Final Report, contract no. DTNH22-97-D-05018. 

National Highway Traffic Safety Administration, Report Number DOT-HS-809 

348. Washington, DC. 

Implied Consent Laws. American Prosecutor Research Institute, National Traffic Law 

Center. (2002). Retrieved July 2002 from 

http://www.ndaa.org/apri/programs/traffic/ntlc_home.html 

Jones, RK; Joksch, HC; and Wiliszowski, CH. (1991). Implied consent refusal impact. 

Final Report, contract no. DTNH22-89-C-07008. National Highway Traffic 

Safety Administration, Report Number DOT-HS-807-765. Washington, DC. 

McCartt, A.T., and Shabanova, V. (2003). Evaluation of Minnesota’s High-BAC Law. 

Final Report, Contract No. DTNH22-98-D-45079. National Highway Traffic 

Safety Administration, Report Number DOT HS 809 677. Washington, DC. 

National Highway Traffic Safety Administration. (2002). Digest of State AlcoholHighway Safety Related Legislation (20th Edition). Washington, DC. 

Ulmer, R.G., Hedlund, J.H. and Preusser, D.F. (under review). Determine Why AlcoholRelated Fatalities Decreased in Five States. Final Report, contract no. DTNH22-

97-D-05018. National Highway Traffic Safety Administration. Washington, DC. 
 51 

APPENDIX A 

Criminal Provisions and Penalties for BAC Test 

Refusal 
52

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l asuf eRt seT sI

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t seT sI

l asuf eR

sa el ib s is mdA

?ecnedi vE

evit art si ni mdA

t seTr of noit cA

l asuf eR

esneci L sI

/ dekoveR

dednepsuS

?l asuf eRr of

tr uoCr o mdA

; noi snepsuS

tf oSr o dr aH

l asuf eRdn2 l asuf eRt s1 )l asuf eRt s1(

+dr 3

l asuf eR

a mabal A

r edr Otr uoC: seY

yr ju nI/ ht aeD+

hsar c oN

l ani mir C &li iv C

dr aH/ mdA dednepsuS seY sesaC

syad 09- S

) dna m(

r y 1- S

) dna m(

r y 1- S

) dna m(

A / aks la

r of r acti efr of ya M

sl as fu er t neuqesbus

/ ht aeD+I W

D: seY

hsar Cyr ju nI

Assal C

r onae medsi M

l ani mir C &li vi C

sesaC

syad 09: seY

dr aH/tr uoC dekoveR )t s1(

syad 09- R

) dna m(

r y 1- R

) dna m(

sr y 3- R

5- ) dna m(

sr y

anozir A

hcr aeS: seY

t narr a W oN

l ani mir C &li vi C

dr a /H mdA dednepsuS seY sesaC

sht no m21- S

) dna m(

sr y 2- S

) dna m(

sr y 2- S

) dna m(

sasnakr A

/ th aeD+I W

D: seY

hsar Cyr uj In dr aH/ mdA dednepsuS seY sesaCl ani mir C oN

syad 09- S

) dna m(

sr y 2- S

) dna m(

sr y 3- R

ot ) dna m(

e mit efil

ai nr ofil aC

t p mor p+I W

D: seY

gnit set

f o det ci vnocfI

eht neht I WD

a si l asuf er

esneff ol a in mir c

l ani mir C &li vi C

sesaC )t s1( r y 1: seY

/ dednepsuS

dekoveR dr aH/ mdA

r y 1- S

) dna m(

r y 2- S

) dna m(

r y 3- S

) dna (m

odar lo oC

/ th aeDI+ W

D: seY

hsar Cyr ju nI eY sesaCl a in imr C oN dr aH/ mdA dekoveR s

r y 1- R

) dna m(

sr y 2- R

) dna m(

sr y 3- R

) dna m(

t u ict cennoC

/ ht aeD+I W

D: seY

hsar Cyr ju nI dr aH/ mdA dednepsuS seY sesaCl ani mir C oN

syad 09

6- ) dna (m

sht no m

l ai ceps(

ti mr ep

) el bali ava

r y 1- S

) dna m(

r y 3- S

) dna m(

/ er awla eD

kcolr et nI n ioti ngI

I W

Dt s1r fo n io sr evi D

+I W

D: seY

yr ju nI/ th aeD oN

l ani mir C &li iv C

dr aH/ mdA dekoveR seY sesaC

s th no m6- R

r y 1- ) dna m(

sht no m81- R

) dna m(

sht no m42- R

) dna m(

C

D

/ ht aeD+I W

D: seY

hsar Cyr ju nI oN

l ani mir C &li vi C

dr aH/ mdA dednepsuS seY sesaC

sht no m21- S

) dna m(

sht no m21- S

) dna m(

sht no m21- S

) dna m(

adir ol F

/ ht aeD+I W

D: seY

hsar Cyr uj nI dr aH/ mdA dednepsuS seY sesaCl ani mir C oN

syad 09- S

) dna m(

sht no m81- S

) dna m(

sht no m81- S

) dna m(

oN ia gr oe G dr aH/ mdA dednepsuS seY sesaCl ani mir C oN

r y 1- S

) dna m(

r y 1- S

) dna m(

r y 1- S

) dna m(

/ii awaH

n iot art is ger el ic heV

l asuf eRr of dekover

/ ht aeD+I W

D: seY

hsar Cyr uj nI oN

g inr aeh mdA

dr aH/ mdA dekoveR seY noit acover t ba

syad 03- R

r y 1- ) dna m(

sr y 2- R

) dna m(

sr y 4- R

efil ot ) dna m(
53

s

n

oi si v

or P

l asuf eRt seTr of noit acoveR- R/ noi snepsuS- Sesneci L

et at S

ebt seT naC

?decr oF

l asuf eRt seT sI

?e mir Ca

t seT sI

l asuf eR

sa el ib s is mdA

?ecnedi vE

evit art si ni mdA

t seTr of noit cA

l asuf eR

esneci L sI

/ dekoveR

dednepsuS

?l asuf eRr of

tr uoCr o mdA

; noi snepsuS

tf oSr o dr aH

l asuf eRdn2 l asuf eRt s1 )l asuf eRt s1(

+dr 3

l asuf eR

ohadI

/ ht aeD+I W

D: seY

hsar Cyr ju nI dr a /H mdA dednepsuS seY sesaCl ani mir C oN

syad 081- S

) dna m(

r y 1- S

) dna (m

si onillI

/ ht aeD+I W

D: seY

hsar Cyr uj In oN

l ani mir C &li vi C

tf oS/ mdA dednepsuS seY sesaC

sht no m6- S

l ai ci duj(

ti rmep

) el b lai ava

sr y 2- S

3- ) dna m(

sr y

sr y 2- S

3- ) dna m(

sr y

anai dnI

/ ht aeD+I W

D: seY

hsar Cyr ju nI

Cssal C

fi noit carf ni

suoir es/ yl daed

hsar c yr uj ni tf oS/ mdA dednepsuS seY sesaCl ani mir C

ya (mr y 1- S

fi dnepsus

) vnocI WD

ya m( r y 1- S

fi dnepsus

) vnocI WD

ya m( r y 1- S

fi dnepsus

) vnocI WD

awIo

hcr aeS: seY

,t narr aw

yr ju nI / ht aeD+I W

D oN

l ani mir C &li vi C

dr aH/ mdA dekoveR seY sesaC

syad 09- R

1 - ) dna m(

r y

r y 1- R

2 - ) dna (m

sr y

r y 1- R

2 - ) dna m(

sr y

sasnaK

/ th aeD+I W

D: seY

hsar Cyr uj nI dr aH/ mdA dednepsuS seY sesaCl ani mir C oN

r y 1- S

) dna m(

sr y 2- S

) dna m(

) dna m( sr y 3

feil -

ykcut neK

hcr aeS: seY

,t narr aw

yr uj In / ht aeD+I W

D dednepsuS seY sesaCl ani mir C oN

to desuf er dna esneff oI WDaf o det ci vnoct on si nosr ep afI

eht to t cej bus si ehs/ eh, wal eht r ednut set l aci mehc a to ti mbus

r fo d te ci vnoc neeb dahfi sa sn iot ca gni sne icl evit art si in mda e mas

. esneff o eht

anai si uoL

/ ht aeD+I W

D: seY

hsar Cyr uj In dnepsuS seY sesaCl a in mir C oN

r o dr aH/ mdA

tf oS

syad 09

onfi dna m(

- ) kcolr et ni

syad 081

kcolr te ni hti w

syad 545

onfi dna m(

- ) kcolr et ni

evir d nac

kcolr et ni thi w

syad 545

onfi dna m(

- ) kcolr et ni

evir d nac

kcolr te ni hti w

le ci hev/ e in a M

eb ya mnoit art is ger

l as fu er r of dednepsus

/ th aeD+I W

D: seY

hsar Cyr ju nI tf oS/ mdA dednepsuS seY sesaCl ani mir C oN

syad 572- S

evah ya m(

pi hsdr ah

) esnecil

sht no m81- S

) dna m(

sr y 4- S

) dna (m

dnal yr a M

yr uj nI/ ht aeD: seY

hsar C dednepsuS seY sesaCl ani mir C oN

r o dr aH/ mdA

tf oS

syad 021- S

det cirt ser(

hti wesnecil

) kcolr et ni

r y 1- S

cil det cirt ser(

hti w

) kcolr et ni

r y 1- S

cil det cirt ser(

hti w

) kcolr et ni

oN stt esuhcassa M

mdA/ dr aH dednepsuS seY oN oN

syad 021- S

) dna m(

syad 081- S

1, dna (m

)I WDr oir P

sr y 1- S

+2, dna m(

)I WDr oir P
54

s

n

oi si v

or P

l asuf eRt seTr of noit acoveR- R/ noi snepsuS- Sesneci L

et at S

ebt seT naC

?decr oF

l asuf eRt seT sI

?e mir Ca

t seT sI

l asuf eR

sa el ib s is mdA

?ecnedi vE

evit art si ni mdA

t seTr of noit cA

l asuf eR

esneci L sI

/ dekoveR

dednepsuS

?l asuf eRr of

tr uoCr o mdA

; noi snepsuS

tf oSr o dr aH

l asuf eRdn2 l asuf eRt s1 )l asuf eRt s1(

+dr 3

l asuf eR

r edr Otr uoC: seY na ig hci M oN

, sesacl ani mir C

t ont ub

f o ecnedi ve

tli ug tf oS/ mdA dednepsuS seY

sht no m6

cil pi hsdr ah(

) le bali ava

r y 1- S

) dna m(

r y 1- S

) dna (m

at osen in M

yr uj In/ ht aeD: seY

hsar C

md /Adr aH dekoveR seY sesaCl ani mir C r onae medsi M

syad 51- R

- ) dna m(

r y 1

syad 081- R

r y 1- ) dna m(

syad 081- R

r y 1- ) dna m(

oN i ppi s is ssi M dr a /H mdA dednepsuS seY sesaCl ani mir C oN

syad 09- S

) dna m(

syad 09- S

1, dna m(

)I WDr oir p

syad 09- S

1, dna m(

)I WDr ior p

ir uossi M

/ ht aeD+I W

D: seY

hsar Cyr uj In oN

, sesacl ani mir C

yr ta n lu ovni

r et hgual sna m

tl uassar o mdA/ dr aH dekoveR seY

syad 09- R

r y 1- ) dna m(

r y 1- R

) dna m(

r y 1- R

) dna m(

oN an ta no M seY sesaCl ani mir C oN

/ dednepsuS

md /Adr aH dekoveR

sht no m6- S

) dna (m

r y 1- R

) dna m(

r y 1- R

) dna (m

aksar beN

: eBya M

yr uj nI / ht aeDI+ W

D

hsar C

Wssal C

sesaCl ani mir C r onae medsi M

sht no m6: seY

dekoveR )t s1(

;tr uoC/ dr aH

r y 1: mdA

+t s1r of ) dna m(

sl as fu eR

s th no m6- R

onfi(

) noit abor p

no( syad 06

) noit abor p

r y 1- R

) dna m( 4- R ) dna m(

adaveN

r oI W

D: seY

yr uj In / ht aeDI+ W

D

hsar C oN sesaCl a in imr C oN

09- R: oN

del aeper syad

5991 ni

eri hsp maH

weN

yr uj nI/ ht aeD: seY

hsar C oN

l ani mir C &li vi C

dr a /H mdA dednepsuS seY sesaC

syad 081- S

) dna m(

sr y 2- S

) dna m(

yesr eJ weN

; waL esaC: seY

hsar Cl at aF

: waL esaC( seY

dr a /H mdA dekoveR seY sesaCl ani imr C )l a in mir ci sauq

sht no m6- R

) dna m(

sr y 2- R

) dna (m

sr y 01

) dna m(

oci xe M

weN

hcr aeS: seY

,t narr aw

yr uj In / ht aeD+I W

D eY sesaCl a in imr C oN dr aH/ mdA dekoveR s

r y 1- R

) dna m(

r y 1- R

) dna m(

r y 1- R

) dna m(

kr oY

weN

,r edr Otr uoC: seY

yr ju nI / ht aeD+I W

D oN

l ani mir C &li vi C

dr aH/ mdA dekoveR seY sesaC

s th no m6- R

) dna m(

r y 1- R

) dna m(

r y 1- R

) dna (m
55

s

n

oi si v

or P

l asuf eRt seTr of noit acoveR- R/ noi snepsuS- Sesneci L

et at S

ebt seT naC

?decr oF

l asuf eRt seT sI

?e mir Ca

t seT sI

l asuf eR

sa el ib s is mdA

?ecnedi vE

evit art si ni mdA

t seTr of noit cA

l asuf eR

esneci L sI

/ dekoveR

dednepsuS

?l asuf eRr of

tr uoCr o mdA

; noi snepsuS

tf oSr o dr aH

l asuf eRdn2 l asuf eRt s1 )l asuf eRt s1(

+dr 3

l asuf eR

/ anil or aChtr oN

det cirt se -R

C

AB

el bali avAesneci L

el bacil ppA: eb ya M

waLf o ser udecor P eY sesaCl a in imr C oN dr aH/ mdA dekoveR s

03 ot 01- R

+ syad

ecnat sbuS

21- gni ni ar T

sht no m

syad 03- R

21- ) dna m(

sht no m

syad 03- R

21- ) dna m(

sht no m

at okaDhtr oN

: seY

yr uj nI/ th aeD+I W

D

hsar C oN

l ani mir C &li iv C

dr aH/ mdA dekoveR seY sesaC

r y 1- R

on, dna m(

)I WDr oir p

sr y 2- R

) dna m(

sr y 3- R

) dna m(

io h O

no desab( eb ya M

) waL esaC

r oni M

r onae medsi M dr aH/ mdA dednepsuS seY sesaCl ani imr C

syad 03- S

r y 1- ) dna (m

syad 09- S

2- ) dna (m

sr y

r y 1- S

5- ) dna m(

sr y

a mohal k O

/ ht aeD+I W

D: seY

hsar Cyr ju nI tf oS/ mdA dekoveR seY sesaCl ani mir C oN

syad 081- S

pi hsdr ah(

esnecil

) le bali ava

r y 1- R

) dna m(

sr y 3- R

) dna m(

noger O

/ th aeD+I W

D: seY

hsar Cyr uj nI oN

l ani mir C &li vi C

sesaC dr a /H mdA dednepsuS seY

syad 09- S

r y 1- ) dna m(

r y 1- S

3- ) dna m(

sr y

oN ai navl ysnneP dr aH/ mdA dednepsuS seY sesaCl ani mir C oN

sht no m21- S

) dna m(

sht no m21- S

) dna m(

sht no m21- S

) dna m(

/ dn la sI edohR

n iot art si ger le ci heV

r of dednepsus eb ya m

l asuf eR oN dr a /H mdA dednepsuS seY oN seY

sht no m3- S

6- ) dna (m

sht no m

r y 1- S

2- ) dna (m

sr y

sr y 2- S

3- ) dna m(

sr y

anil or aCht uoS

/ th aeD+I W

D: seY

hsar Cyr ju In tf oS/ mdA dednepsuS seY sesaCl ani mir C oN

syad 09- S

r d p met(

) egeli vir p

syad 081- S

r d p met(

) egeli ivr p

syad 081- S

r d p met(

) egeli vir p

at okaDht uoS

r oI W

Ddr 3: seY

yr ju nI/ th aeD

waL esaC: seY tf oS/ mdA dekoveR seY sesaCl ani mir C oN

t eg nac( r y- 1

) ip hsdr ah

t eg nac( r y- 1

) pi hsdr ah

t eg nac( r y- 1

) pi hsdr ah

eessenneT

l at aF ni ebya M

hsar C sesaCl a in imr C oN

gni dneped, seY

I WDr oir p no tf o /S mdA dekoveR

r y 1- R

on, dna (m

)I WDr ior p

sr y 2- R

r oir p, dna (m

)I WD

sr y 2- R

r ior p, dna m(

)I WD

/ saxeT

oN=l atti uqcaI W

D

psuSl asuf eR

/ th aeD+I W

D: seY

hsar Cyr uj nI tf oS/ mdA dnepsuS seY sesaCl ani mir C oN

syad 081- S

pi hsdr ah(

esnecil

syad 09- S

2- ) dna m(

sr y
56

s

n

oi si v

or P

l asuf eRt seTr of noit acoveR- R/ noi snepsuS- Sesneci L

et at S

ebt seT naC

?decr oF

l asuf eRt seT sI

?e mir Ca

t seT sI

l asuf eR

sa el ib s is mdA

?ecnedi vE

evit art si ni mdA

t seTr of noit cA

l asuf eR

esneci L sI

/ dekoveR

dednepsuS

?l asuf eRr of

tr uoCr o mdA

; noi snepsuS

tf oSr o dr aH

l asuf eRdn2 l asuf eRt s1 )l asuf eRt s1(

+dr 3

l asuf eR

) le bali ava

oN hat U oN

l ani mir C &li vi C

sesaC dr aH/ mdA dekoveR seY

sht no m81- R

) dna m(

sht no m42- R

r oir p, dna m(

)I WD

t no mr eV

hcr aeS: seY

,t narr aw

yr ju In / ht aeD+I W

D

r oir Psahfi : seY

r oI WD

yr uj ni/ ht aed

e mas snoit cnas(

)I WDsa md /Adr aH dednepsuS seY sesaCl ani mir C

sht no m6- S

) dna m(

sht no m81- S

) dna (m

sr y 3- S

fei L- ) dna m(

deri uqer eb ya M ai ni gri V

mdA/ dr aH dednepsuS seY sesaCl a in imr C oN

r y 1- S

) dna m(

r y 1- S

) dna m(

r y 1- S

) dna m(

/ not gni hsa W

nur snoit ca esne ic L

vnocI W

Dr fo qesnoc

l asuf eR;l asuf eRdna

r of e mas snoit cnas

snoit cnas C

ABhgi h

/ ht aeD+I W

D: seY

hsar Cyr ju nI eY sesaCl a in imr C oN dr aH/ mdA dekoveR s

r y 1- R

) dna m(

sr y 2- R

) dna m(

sr y 2- R

) dna m(

ri Vt se W g / ai ni

, yr adnocesr of l as fu eR

gnit set yr iat nedi ve

yr ani iml er pt on, yl no

oN gnit set dekoveR seY sesaCl ani mir C oN

r o dr aH/ mdA

tf oS

syad 03- R

hti w(

1- ) kcolr et ni

on( r y

) kcolr et ni

sht no m81- R

hti w(

5- ) kcolr et ni

dna m( sr y

on thi w

- ) kcolr et ni

sr y 01

sht no m81- R

hti w(

- ) kcolr et ni

dna m( sr y 01

on hti w

- ) kcolr et ni

efi L

/ in snocsi W

is el ci hev-l asuf eRdn2

) dna mt on( de izli bo m

mi

1( deri uqer kcolr et ni r o

dr 3;) cover r etf ar y

t on( er uti efr of -l asuf eR

snae ml uf wla : seY ) dna m eY sesaCl a in imr C oN dr aH/ mdA dekoveR s

syad 03- R

r y 1- ) dna m(

r y 1- R

2- ) dna (m

sr y

r y 1- R

3- ) dna m(

sr y

gni moy W

/ ht aeD+I W

D: seY

hsar Cyr uj In oN

l ani mir C &li iv C

sesaC dr aH/ mdA dednepsuS seY

sht no m6- S

) dna m(

sht no m81- S

) dna m(

sht no m81- S

) dna m(
5

7

l asuf eRt seTr of ) $( eni F l asuf eRt seTr of t ne mnosir p mI t seTr of eci vr eS yti nu mmoC l asuf eR r of seitl aneP ecudeRya Mt aht secnat s mucri C l asuf eRt seT

et at S t s1

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r oir P +2

. vnoC

I WDdnett A

/ ssal C

t ne mt aer T

noiti ngI

kcolr et nI

dell at sni

ytli uGsdael P

t s1t a

t ne mngi arr A

a mabal A oN oN oN oN oN oN oN oN oN oN oN oN

A / aksal

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senif f ot soc

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oN oN oN oN

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oha Id oN oN oN oN oN oN oN oN oN oN oN oN

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anai dnI oN oN oN

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8

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 60 

APPENDIX B 

Provisions and Penalties for Failing a BAC Test 

and for DWI Conviction 
 61 

Provisions For Failing a BAC Test & Administrative Sanctions & DWI Fines 

S-Suspension/R-Revoke- Administrative Per Se Fine ($) - DWI Conv 

State Is there a High 

BAC provision? 1st Offense 2nd 

Offense 3rd Offense 1st DWI 2nd DWI 3rd DWI 

Alabama No S-90 days S-1 yr S-3 yrs $600 - 

$2,100 

$1,100 - 

$5,100 

$2,100 - 

$10,100 

Alaska No R-30 days R-1yr R-3 yrs $250 $500 - 

$5,000 

$1,000 - 

$50,000 

Arizona 

Yes: .15 (per 

se)/ no tiered 

sanctions 

S-30 days S-90 days S-90 days $250 - 

$2,500 

$500 - 

$2,500 

$500 -

$2,500 

Arkansas Yes: .15 adm. 

tiered sanctions 

120 days/ 

hardship 

license 

available 

S-24 

months/ 1yr 

with interlock 

S-30 months/ 1 

yr with interlock 

$150 - 

$1,000 

$400 - 

$3,000 

$900 - 

$5,000 

California Yes: .20 (court 

sanctions) S-30 days S-1 yr S-1 yr $390 - $1,000 

$390 - 

$1,000 

$390 - 

$1,000 

Colorado* Yes: .20 (court 

sanctions) 

R-3 months/ 1 

month with 

interlock 

R-1yr/ 3 

months with 

interlock 

R-1yr/ 3 

months with 

interlock 

$300- 1,000 $450 - 

$1,500 

$500 - 

$1,500 

Connecticut* Yes: .16 adm. 

tiered sanctions 

90 days/ 

special permit 

available 

S-9 months S-2.5 yrs $500 - 1,000 $1,000 - 

$4,000 

$2,000 - 

$8,000 

Delaware/ 

Interlock 

Diversion for 1st 

DWI 

Yes: .16/.20 (1st 

DWI diversion) R-3 months R-1 yr R-18 months $230 - 

$1,150 

$575 - 

$2,300 

$1,000 - 

$3,000 

DC* Yes: .20 & .25 

(court sanctions) 

Under the Influence of Intoxicating Liquor or Drugs: 

1st - S 2 to 90 days or R 6 months; sub - S 2 to 90 

days or R (varies) 

$300 $1,000 - 

$5,000 

$2,000 - 

$10,000 

Florida 

Yes: .20 (fine, 

jail, no lesser 

plea) 

S-30 days 

(mand) - 6 

months 

S-11months 

to 1 yr 

S-11 months to 

1 yr $250 -$500 $500 - 

$1,000 

$1,000 - 

$2,500 

Georgia Yes: .15 (no nolo 

contendere) 

S-30 days 

(mand) - 1 yr 

S-12 months 

(mand) - 3 

yrs 

S-2 yrs (mand) 

- 5 yrs 

$300 – 

$1,000 

$600 - 

$1,000 

$1,000 - 

$5,000 

Hawaii No 

R-30 days 

(mand) - 1 

yr 

R-1 yr 

(mand) - 2 

yrs 

R-2 yrs (mand) 

- 4 yrs 

$150 – 

$1,000 

$500 - 

$1,500 

$500 - 

$2,500 

Idaho Yes: .20 (court 

sanctions) 

S-30 days 

(mand) - 90 

days 

S-1 yr S-1 yr $1,000 $2,000 $5,000 

Illinois 

Yes: .15/.20 (risk 

category for 

treatment) 

S-3 months 

(not mand) S-1 yr S-1 yr up to $2500 up to 

$2500 

up to 

$25,000 

Indiana 

Yes: .15 (per 

se)/ tiered 

sanctions 

S-180 days S-180 days S-180 days up to $500 up to 

$10,000 

up to 

$10,000 

Iowa 

Yes: <.15 

(eligible for 

deferred 

judgment) 

R-30 days 

(mand) - 180 

days 

R-1 yr R-1 yr $500 - 

$1,000 

$1,500 - 

$5,000 

$2,500 - 

$7,500 

Kansas No 

S-30 days 

(mand) - 330 

days 

S-1 yr + 1yr 

interlock 

S-1 yr + 1yr 

interlock 

$500 - 

$1,000 

$1,000 - 

$1,500 

$1,500 - 

2,500 

Kentucky Yes: .18 (jail & 

fine) 

No administrative per se law sanctions, but court 

shall suspend those who refused, have a prior DWI 

conv or refusal, or involved in serious-injury crash. $200 -$ 500 $350 - 

$500 

$500 - 

$1,000 
 62 

Provisions For Failing a BAC Test & Administrative Sanctions & DWI Fines 

S-Suspension/R-Revoke- Administrative Per Se Fine ($) - DWI Conv 

State Is there a High 

BAC provision? 1st Offense 2nd 

Offense 3rd Offense 1st DWI 2nd DWI 3rd DWI 

Louisiana Yes: .15 (court 

jail term) 

S-30 days 

(mand if no 

interlock) - 90 

days can drive 

with interlock 

S-365 days 

(mand if no 

interlock) - 

365 days 

can drive 

with interlock 

S-365 days 

(mand if no 

interlock) - 365 

days can drive 

with interlock 

$300 - 

$1,000 

$750 - 

$1,000 up to $2,000 

Maine Yes: .15 (jail 

term) 

S-60 days (no 

mand period) S-18 months S-4 yrs $400 -

$2,000 

$600 - 

$2,000 

$1,000 - 

$2,000 

Maryland** No S-45 days (no 

mand period) 

S-90 days 

(less with 1 

yr interlock) 

S-90 days (less 

with 1 yr 

interlock) 

up to $1,000 up to 

$2,000 up to $2,000 

Massachusetts No S<90 days S<90 days S<90 days $500-$5,000 $600-

$10,000 

$1,000-

$15,000 

Michigan* No 

If refused or submitted and BAC is illegal, police 

confiscate & destroy license; drive on temp permit 

until end of DWI criminal proceedings 

$100 - $500 $200 - 

$1,000 

$500 - 

$5,000 

Minnesota Yes: .20 (tiered 

sanctions) 

R-15 days 

(mand) - 90 

days 

R-90 

days(mand) 

- 180 days 

R-90 days 

(mand) - 180 

days 

$210 - $700 $900 - 

$3,000 

$900 - 

$3,000 

Mississippi No 

License is not taken at arrest; offender schedules a 

trial: if BAC is illegal, license is seized and sent to 

DMV; offender is issued a 30-day driving permit 

until court proceedings 

$250 - 

$1,000 

$600 - 

$1,500 

$2,000 - 

$5,000 

Missouri 

Yes: .15 

(substance 

abuse program) 

S-30 days 

(mand) - 60 

days 

R-1 yr R-1yr up to $500 up to 

$1,000 up to $5,000 

Montana 

Yes: .18 ignition 

interlock cannot 

be waived 

None $100 - $500 $300 - 

$500 500 - $1,000 

Nebraska No 

R-30 days 

(mand) -90 

days 

R-1 yr R-1 yr $400 - $500 $500 $600 

Nevada 

Yes: .18 

(alcohol/drug 

abuse eval) 

R-90 days/ 

cancelled with 

DWI conv 

R-90 days/ 

cancelled 

with DWI 

conv 

R-90 days/ 

cancelled with 

DWI conv 

$400 - 

$1,000 

$750 - 

$1,000 

$2,000 - 

$5,000 

New Hampshire Yes: .16 (tiered 

sanctions) S-6 months S-2 yrs S-2 yrs $350 - 

$1,000 

500 - 

2,000 

$500 - 

$2,000 

New Jersey No DMV issues preliminary suspension without hearing $250 - $400 500 - 

1,000 $1,000 

New Mexico Yes: .16 (jail 

term) 

R-30 days 

(mand) - 90 

days 

R-30 days 

(mand) - 1 yr 

R-30 days 

(mand) - 1 yr up to $500 $500 - 

$1,000 

$750 - 

$5,000 

New York*** No 

License is suspended by the court at the time of 

arraignment - hardship license available 

immediately 

$500 - 

$1,000 

$1,000 - 

$5,000 

$1,000 - 

$5,000 

North Carolina/ 

BAC Restricted 

License Available 

Yes: .15/.16 

(subst abuse 

program, 

aggravating 

factor at 

sentencing) 

R-10 days 

(mand) - 30 

days 

R-10 days 

(mand) - 30 

days 

R-10 days 

(mand) - 30 

days 

up to $1,000 up to 

$2,000 up to 5,000 

North Dakota No 

S-30 days 

(mand) - 90 

days 

S-365 days S-2 yrs $250 - 

$1,000 

$500 - 

$1,000 $1,000 
 63 

Provisions For Failing a BAC Test & Administrative Sanctions & DWI Fines 

S-Suspension/R-Revoke- Administrative Per Se Fine ($) - DWI Conv 

State Is there a High 

BAC provision? 1st Offense 2nd 

Offense 3rd Offense 1st DWI 2nd DWI 3rd DWI 

Ohio Yes: .17 (tiered 

sanctions) 

S-15 days 

(mand) - 90 

days 

S-30 days 

(mand) - 1 yr 

S-180 days 

(mand) - 2 yrs 

$250 - 

$1,000 

$350 - 

$1,500 

$550 - 

$2,500 

Oklahoma* 

Yes: .15 

(inpatient treat., 

interlock) 

up to 180 days 

(less with 

interlock) 

R-1 yr R-1 yr - 3 yrs up to $1,000 up to 

$2,500 up to $5,000 

Oregon No 

S-30 days 

(mand) - 90 

days 

S-1 yr S-1 yr $1,000 - 

$5,000 

$1,500 - 

$5,000 

$2,000 - 

$5,000 

Pennsylvania No None 

$300 - 

$5,000 

(+surcharge 

$50) 

$300 - 

$5,000 (+ 

surcharge 

$100) 

$300 - 

$10,000 

(+surcharge 

$200) 

Rhode Island Yes: .15 (tiered 

sanctions) 

License may be suspended for up to 1 yr, if 

committed offense that requires court license 

suspension/revocation (e.g., DWI) 

$100 - $500 $400 - 

$1,000 

$400 - 

$5,000 

South Carolina No BAC > .15 : 30 

days (soft) 

BAC > .15 : 

60 days 

(soft) 

BAC > .15 : 60 

days (soft) $300 $1,000 - 

$5,000 

$3,500 - 

$6,000 

South Dakota Yes: .17 (alcohol 

evaluation) None up to $1,000 up to 

$1,000 up to $2,000 

Tennessee Yes: .20 (jail 

term) None $350 - 

$1,500 

$600 - 

$3,500 

$1,100 - 

$10,000 

Texas No 

S-90 days (can 

get occup 

license) 

S-90 days 

(mand) - 1 yr No up to $2,000 up to 

$4,000 

up to 

$10,000 

Utah 

Yes: .16 

(Electronic 

Home 

Monitoring) 

S-90 days S-1 yr S-1 yr $700 - 

$1,000 

$800 - 

$1,000 

$1,500 - 

$5,000 

Vermont No S-90 days S-18 months S-3 yrs (mand) 

- Life up to $750 up to 

$1,500 up to $2,500 

Virginia 

Yes: .20 (Alcohol 

Safety Action 

Program) 

S-7 days S-7 days S-7 days up to $2,500 up to 

$2,500 up to $2,500 

Washington Yes: .15 (tiered 

sanctions) 

S-30 days 

(mandatory) - 

90 days R-2 yrs R-2 yrs $350 - 

$5,000 

$500 – 

5,000 

$1,000 - 

$5,000 

West Virginia No 

R-30 days 

(mand with 

interlock) - 90 

days (mand 

with no 

interlock) - 6 

months 

R-9 months 

(mand with 

interlock) - 5 

yr (mand 

with no 

interlock) - 

10 yrs 

R-1 yr (mand 

with interlock) - 

10 yrs (mand 

with no 

interlock) - Life 

$100 - $500 $1,000 - 

$3,000 

$3,000 - 

$5,000 

Wisconsin 

Yes: .17, .20, .25 

(Subsequent 

Offenses - fines 

& jail term) 

S- 6 months 

(not mand) 

S-6 months 

(not mand) 

S-6 months 

(not mand) $150 - $300 $350 - 

$1,100 

$600 - 

$2,000 

Wyoming No 

S-90 days (can 

get occup 

license) 

S-90 days 

(mand) 

S-90 days 

(mand) up to $750 $200-750 $750-$3,000 

* Mandatory sanctions for the offenses of driving while under the influence and illegal per se 

** Mandatory sanctions for the offenses for driving while under the influence of alcohol/illegal per se 

*** Mandatory sanctions for the offenses of driving while intoxicated and illegal per se 
 64 

Penalties for DWI Conviction 

Imprisonment - DWI Conv Community Service - DWI Conv Licensing Action - DWI Conv 

State R-Revoked/S-Suspended 

1st DWI 2nd DWI 3rd DWI 1st DWI 2nd DWI 3rd DWI 1st DWI 2nd DWI 3rd DWI 

Alabama 0 days1yr 

5 days1yr 

60 

days1 yr 

None 30 days - in 

lieu of jail None S-90 days R-1 yr R-3 yrs 

Alaska 72 hours1 yr 

20 days - 

1 yr 

60 days 

- 5 yrs 

24 hours + 

jail term 

160 hours + 

jail term 

discretionary 

with court 

R-30 days 

& interlock R-1 yr R-3 yrs 

Arizona 24 hours - 

6 months 

30 days - 

6 months 

4 

months 

- 6 

months 

discretionary 

with court 

discretionary 

with court not eligible S-90 days R-1 yr R-3 yrs 

Arkansas 24 hours - 

1 yr 

7 days - 

1 yr 

90 days 

- 1 yr 

discretionary 

with court - in 

lieu of jail 

30 days in 

lieu of jail 

90 days in 

lieu of jail 

via administrative per se law; plus add 6 

month-suspension via court DWI 

conviction 

California 0 to 6 

months 

96 hours - 

1 yr 

30 days 

- 1 yr 

10 days + 48 

hours of jail 

10 days + 

48 hours of 

jail 

10 days + 

48 hours of 

jail 

restricted 

driving 

restricted 

driving 

R-18 

months 

Colorado* 5 days - 

1yr 

48hrs - 10 

days com 

service 

48hrs - 

10 days 

com 

service 

48 hours + 

jail term 

60 hours + 

jail term 

60 hours + 

jail term 

R-3 

months R-1 yr R-1 yr 

Connecticut* 48 hours - 

6 months 

120 days - 

2 yrs 

1 yr - 

3yrs 

100 hours in 

lieu of 48 

hours of jail 

100 hours + 

jail term 

100 hours + 

jail term S-1 yr S-3 yr Rpermanent 

Delaware/ 

Interlock 

Diversion for 1st 

DWI 

60 days 

(may 

suspend) 

to 6 

months 

60 days - 

18 months 

1 yr 

(may 

suspend 

aft 3 

mo) to 2 

yrs 

discretionary 

to court 

discretionary 

to court 

discretionary 

to court R-1y R-1 yr R-18 months 

DC* 5 days - 

90 days 

10 days - 

1 yr 

10 days 

- 1yr none 30 days + jail term 

60 days + 

jail term 

R-6 

months R-1 yr R-2 yrs 

Florida 0 - 6 

months 

10 days - 

9 months 

30 days 

- 12 

months 

50 hours +jail 

term + fine None None R -180 

days 

R-12 

months 

R-24 

months 

Georgia 

24 hours - 

12 

months 

72 hours -

12 months 

15 days 

- 12 

months 

40 hours +jail 

term 

30 days + 

jail term 

30 days + 

jail term S-12 S-12 

months R-2 yrs 

Hawaii 48 hours - 

5 days 

5 days - 

14 days 

10 days 

- 30 

days 

72 hours + 

jail term 

240 hours in 

lieu of jail None 

S-30 days 

(mand) - 

90 days 

S-1 yr 

R-1 yr 

(mand) - 5 

yrs 

Idaho 0 - 6 

months 

10 days - 

1 yr 

30 days 

- 5 yrs condition of probation 

S-30 days 

(mand) - 

150 days 

S-1 yr 

S-1 yr 

(mand) - 5 

yrs 

Illinois 0- 1 yr 5 days - 1 

yr 

10 days 

- 3 yrs None 

30 days in 

lieu of 5 

days of jail 

60 days in 

lieu of 10 

days of jail 

 R-1 yr R-1 yr 

Indiana 0 to 60 

days 

5 days - 2 

yrs 

10 days 

- 4 yrs None 30 days in 

lieu of jail 

60 days in 

lieu of jail 

S-30 days 

(mand) - 2 

yrs 

S-1 yr 

(mand) - 

2 yrs 

S-1 yr 

(mand) - 2 

yrs 

Iowa 48 hours - 

1 yr 

7 days - 1 

yr 

30 days 

- 5 yrs in lieu of fine in lieu of fine None 

R-30 days 

(mand) - 1 

yr 

R-1 yr 

(mand) - 

2 yrs 

R-1 yr 

(mand) - 6 

yrs 

Kansas 48 hours - 

6 months 

5 days - 1 

yr 

90 days 

- 1 yr 

100 hours in 

lieu of jail in lieu of fine None 

S-30 days 

(mand) - 

330 days S-1 yr S-1 yr 
 65 

Penalties for DWI Conviction 

Imprisonment - DWI Conv Community Service - DWI Conv Licensing Action - DWI Conv 

State R-Revoked/S-Suspended 

1st DWI 2nd DWI 3rd DWI 1st DWI 2nd DWI 3rd DWI 1st DWI 2nd DWI 3rd DWI 

Kentucky 48 hours - 

30 days 

7 days - 6 

months 

30 days 

- 12 

months 

48 hours + 

jail term 

10 days - 6 

months + jail 

terms 

10 days - 12 

months + jail 

term 

S-30 days 

(mand) - 

120 days 

R-12 

months 

(mand) 

18 

months 

R-24 

months 

(mand) - 36 

months 

Louisiana 0 to 6 

months 

48 hours - 

6 months 

30 days 

- 5 yrs 

4 days as 

terms of 

probation 

None None 

90 days 

(no 

mandatory 

with 

interlock) 

12 

months 

(mand 

without 

interlock) 

- can 

drive with 

interlock 

S-12 months 

(mand 

without 

interlock) - 

24 months 

can drive 

with 

interlock 

Maine 48 hours - 

1 yr 

7 days - 1 

yr 

30 days 

- 1 yr 

as a 

condition of 

probation 

as a 

condition of 

probation 

as a 

condition of 

probation 

S-60 days 

(mand) - 

90 days 

S-18 

months S-4 yrs 

Maryland** 0 to 1 yr 5 days– 

2 yrs 

10 days 

- 3 yrs none 

30 days in 

lieu of 5 

days of jail 

60 days in 

lieu of 10 

days of jail 

R-6 

months 

(no any 

prior revs) 

R-1 yr (1 

any prior 

revoc) 

R-1 yr (2 

any prior 

revoc) 

Massachusetts 0- 2.5 yrs 30 days - 

2.5 yrs 

150 

days - 

2.5 yrs 

min 30 hrs via court order + jail term 

S-45 days 

(mand) - 

1 yr 

R-6 

months - 

2 yrs 

R-2 yrs - 8 

yrs 

Michigan* 0- 93 

days 

5 days - 

1yr 

30 days 

- 1 yr 

0-45 days in 

lieu of jail 

30 days 

(mand) to 90 

days in lieu 

of jail 

60 days 

(mand) to 

180 days 

+jail term 

S-30 days R-1 yr S-5 yrs 

Minnesota 48 hrs - 

90 days 

48 hours - 

1 yr 

60 days 

- 1 yr 

8 hrs for 

each of 30 

days of jail 

80 hours + 

jail term 

80 hours + 

jail term 

R-15 days 

(mand) - 

30 days 

R-90 

days 

(mand ) - 

180 days 

R-90 days 

(mand) - 

180 days 

Mississippi 0-48 

hours 

5 days - 

1 yr 

1 yr - 5 

yrs 

victim impact 

panel in lieu 

of jail 

10 days to 1 

yr + jail term 

S-30 days 

- 1yr 

S-1 yr - 2 

yrs 

S-3 yrs - 5 

yrs 

Missouri 0- 6 

months 

5 days - 

1yr 

10 days 

- 5 yrs None 30 days in 

lieu of jail 

60 days in 

lieu of jail 

S-30 days 

(mand) - 

60 days 

R-2 yrs R-3 yrs 

Montana 24 hours - 

10 days 

3 days - 6 

months 

10 days 

- 1yr 

As part of deferred sentencing. However, not 

in lieu of mandatory jail term. 

S- 0 to 6 

months 

R-3 

months - 

1 yr 

R-3 months 

- 1 yr 

Nebraska 

7 days (if 

no 

probation) 

- 60 days 

30 days (if 

no 

probation), 

5 days (on 

probation) 

- 90 days 

10 days 

- 1 yr none 

240 hours in 

lieu of jail 

480 hours in 

lieu of jail 

R-6 

months (if 

no 

probation), 

60 days 

(on 

probation) 

R-1 yr 

R-7 yrs (if 

no 

probation), 

1 yr (on 

probation) 

Nevada 2 days - 6 

months 

10 days - 

6 months 

1 yr - 6 

yrs 

48 hours 

(mand) - 96 

hrs in lieu of 

jail 

100 hours + 

jail term None 

R-45 days 

(mand) - 

90 days 

R-1 yr 

R-1.5 yrs 

(mand) - 3 

yrs 

New Hampshire 

10 days 

(mand) - 1 

yr 

10 days 

(mand) - 

1 yr 

For a felony or Class A misdemeanor. - 

conditional discharge and 50 hrs 

R-90 days 

(mand) - 2 

yrs 

R-3 yrs R-3 yrs - 5 

yrs 
 66 

Penalties for DWI Conviction 

Imprisonment - DWI Conv Community Service - DWI Conv Licensing Action - DWI Conv 

State R-Revoked/S-Suspended 

1st DWI 2nd DWI 3rd DWI 1st DWI 2nd DWI 3rd DWI 1st DWI 2nd DWI 3rd DWI 

New Jersey 

30 days 

(12-48 hrs 

mand 

treatment) 

48 hours - 

90 days 

90 days 

- 180 

days 

none 30 days+ jail 

term 

90 days + 

jail term 

R-6 

months 

(mand) - 1 

yr 

R-2 yrs R-10 yrs 

New Mexico 0-90 days 72 hours - 

1 yr 

30 days 

- 1 yr 

48 hrs in lieu 

of fine 

48 hrs + jail 

term 

R- up to 1 

yr 

R-30 

days 

(mand) - 

1 yr 

R-30 days 

(mand) - 10 

yrs 

New York*** up to 1 yr up to 4 yrs up to 7 

yrs As a condition of probation R- up to 6 

months R-1 yr R-1 yr 

North Carolina/ 

BAC Restricted 

License 

Available 

72 hrs - 6 

months 

7 days - 

12 months 

30 days 

- 24 

months 

up to 72 hrs None None R- up to 1 

yr 

R-2 yrs 

(mand) - 

4 yrs 

R-3 yrs 

(mand) - 

Permanent 

North Dakota 0-30 days 5 days - 

30 days 

60 days 

- 1 yr None 30 days in 

lieu of jail None S-30 days 

- 91 days 

S-365 

days S-2 yrs 

Ohio 3 days - 6 

months 

10 days - 

6 mnths 

30 days 

- 1 yr Possible, as a condition of probation 

S-15 days 

(mand) - 3 

yrs 

S-30 

days 

(mand) - 

5 yrs 

S-180 days 

(mand) - 10 

yrs 

Oklahoma* 10 days - 

1 yr 

5 days - 5 

yrs 

10 days 

- 7 yrs None None 240 hrs + jail 

up to 180 

days R-1 yr 

R-1 yr 

(mand) – 3 

yrs 

Oregon 48 hours - 

1 yr 

48 hours - 

1 yr 

48 

hours - 

1 yr 

80 hours in 

lieu of jail 

80 hours in 

lieu of jail 

80 hours in 

lieu of jail up to 1 yr 

S-90 

days 

(mand) - 

3 yrs 

S-1 yr 

(mand) - 3 

yrs 

Pennsylvania 48 hours - 

2 yrs 

30 days - 

2 yrs 

90 days 

- 5 yrs 

Possible 

under pretrial 

diversion 

programAccelerated 

Rehabilitative 

Disposition 

(ARD) 

None None 

S-1 month 

(ARD) - 1 

yr 

S-12 

months S-12 months 

Rhode Island 

up to 1 yr 

(high 

BAC) 

10 days - 

1 yr 

1 yr - 3 

yrs 

10 hours 

(mand) - 60 

hours 

10 hours 

(mand) - 60 

hours 

S-3 

months 

(high 

BAC) 

S-1 yr 

(mand) - 

2 yrs 

S-2 yrs 

(mand) - 3 

yrs 

South Carolina 48 hours - 

30 days 

48 hours - 

1 yr 

60 days 

- 3 yrs 

48 hours in 

lie of jail 

10 days in 

lieu of jail 

S-6 

months 

(can get 

hardship) 

S-1 yr 

(mand) - 

2 yrs 

S-2 yrs 

(mand) - 4 

yrs 

South Dakota 

Limited to subs offender and not 

having license at the time of DWI 

arrest 

May be condition of probation 

R-30 days 

- 1 yr (can 

get 

hardship) 

R-1 yr 

(mand) 

R-1 yr 

(mand) 

Tennessee 

48 hours - 

11 

months 

29 days 

45 days - 

11 months 

29 days 

120 

days - 

11 

months 

29 days 

200 hrs in 

lieu of jail 

(Population 

>100,000) 

 R-1 yr (not 

mand) R-2 yrs R-3 yrs 
 67 

Penalties for DWI Conviction 

Imprisonment - DWI Conv Community Service - DWI Conv Licensing Action - DWI Conv 

State R-Revoked/S-Suspended 

1st DWI 2nd DWI 3rd DWI 1st DWI 2nd DWI 3rd DWI 1st DWI 2nd DWI 3rd DWI 

Texas 72 hrs - 

180 days 

5 days - 

1yr 

10 days 

- 10 yrs 

24 - 100 

hours + jail 

term 

80-200 

hours + jail 

term 

160-600 

hours + jail 

term 

S-90 days 

- 1 yr (can 

get 

interlock + 

license) 

S-1 yr 

(mand) - 

2 yrs 

(interlock) 

S-1 yr 

(mand) - 2 

yrs 

(interlock) 

Utah 48 hours - 

6 months 

240 hours 

- 6 months 

1,500 

hours - 

5 yrs 

24 hours in 

lieu of jail 

240 hours 

lieu of jail S-90 days R-1 yr R-1 yr 

Vermont 0- 2yrs 60 hours - 

2 yrs 

100 

hours - 

5 yrs 

Possible 200 hours in 

lieu of jail 

400 hours in 

lieu of jail S-90 days S-18 

months 

R-3 yrs 

(mand) - 

Permanent 

Virginia 0-12 

months 

5 days - 1 

yr 

30 days 

- 1 yr None 

S-1 yr 

(can get 

hardship 

license) 

R-1 yr 

(mand) - 

3 yrs 

R-3 yrs 

(mand) - 10 

yrs 

Washington 24 hours - 

1 yr 

30 days - 

1 yr 

90 days 

- 1 yr Possible 

S-30 days 

(mand) - 

90 days 

(R -1 yr for 

high BAC) 

R-2 yrs 

(R-900 

days for 

high 

BAC) 

R-3 yrs (R-4 

yrs for high 

BAC) 

West Virginia 24 hours - 

6 months 

6 months - 

1 yr 

1 yr - 3 

yrs When there is no injury 

R-30 days 

(mand 

with 

interlock) - 

90 days 

(mand 

with no 

interlock) - 

6 months 

R-9 

months 

(mand 

with 

interlock) 

- 5 yr 

(mand 

with no 

interlock) 

- 10 yrs 

R-1 yr 

(mand with 

interlock) - 

10 yrs 

(mand with 

no interlock) 

- Life 

Wisconsin none 5 days - 6 

months 

30 days 

- 1 yr 

30 days in 

lieu of jail 

R-6 - 9 

months 

(not 

mand) 

R-60 

days 

(mand) - 

18 

months 

R-90 days 

(mand) - 3 

yrs 

Wyoming 0-6 

months 

7 days - 6 

months 

30 days 

- 6 

months 

Possible, as a condition of probation 

S-90 days 

(can get 

hardship) 

S-1 yr 

(mand) 

R-3 yrs 

(mand) 
 68 

APPENDIX C 

Connecticut Implied Consent Form A-44


 71 

APPENDIX D 

Facsimile of Maryland Form DR-15: 

ADVICE OF RIGHTS 
 72 

ADVICE OF RIGHTS -(§16-205.1 of the Maryland Vehicle Law) 

You have been stopped or detained and reasonable grounds exist to believe that you have been driving or attempting to drive a motor vehicle while under 

the influence of alcohol; impaired by alcohol; so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol; 

or impaired by a controlled substance that you could not drive a vehicle safely; in violation of an Alcohol Restriction, or in violation of §16-813 of 

Maryland Transportation Article. 

In this state, any person who drives or attempts to drive a motor vehicle, including a commercial motor vehicle, on a highway or on any private property 

that is used by the public in general, is deemed to have consented to take a test to determine the alcohol concentration, or test to determine the drug or 

controlled dangerous substance content of the person. The test shall be at no cost to you. The test to determine alcohol concentration shall be a breath test. 

However, a test of blood shall be administered if the breath test equipment is unavailable. A test is required to determine the drug or controlled dangerous 

substance content, or if your injuries require medical attention. The results of such test or tests, or a refusal of any such test, may be admissible as evidence 

in any criminal prosecution. 

• Mandatory Test: 

If you are involved in a motor vehicle accident resulting in the death of, or life threatening injuries to, another person, you must take a test. 

• Submission to the test. If your test results in an alcohol concentration of 0.08 or more: 

The MVA will be notified of your test results; your Maryland driver’s license shall be confiscated; an Order of Suspension issued: and if eligible, a 

temporary license issued valid for 45 days. An Administrative suspension shall be imposed by the MVA against your Maryland driver’s license or 

privilege. The suspension shall be 45 days for a first offense and 90 days for a second or subsequent offense. Modification of the suspension may 

occur in certain circumstances. 

• You have the right to refuse to submit to the test. If you refuse: 

The Motor Vehicle Administration (VMA) will be notified of your test refusal; your Maryland (MD) driver’s license shall be confiscated; an Order of 

Suspension issues, and if eligible, a temporary license issued, valid for 45 days. The MVA shall suspend your MD driver’s license or driving 

privilege if you are a non-resident. The suspension shall be 120 days for a first offense and 1 year for a second or subsequent offense. You will be 

ineligible for a modification of the suspension or issuance of a restrictive license, except in certain circumstances, a test refusal suspension may be 

modified at a hearing if you agree to participate in the Ignition Interlock Program for at least 1 year. 

• Administrative Hearings: 

You may request an Administrative Hearing, at any time within 30 days of the date of the Order of Suspension, to show cause why your driver’s 

license or privilege should not be suspended. You may request a hearing within 10 days of the date of the Order of Suspension to insure that your 

privilege to drive is not suspended prior to your hearing. Your request for a hearing must be made in writing. You may use the “Hearing Request” 

form if available. Send your request to the Office of Administrative Hearings at 11101 Gilroy Rd., Hunt Valley, MD 21031-1301. You must include 

a check or Money Order for $15.00, which is the required filing fee, made payable to the “Maryland State Treasurer.” Your request for a hearing will 

be invalid if submitted without the required $15.00 filing fee. 

• Violation of Restriction: The MVA may also suspend or revoke your license upon satisfactory evidence of a violation of an alcohol restriction. 

• Disqualification of CDL: In addition to any suspension for a test failure or refusal, your Commercial Driver’s License (CDL) may be disqualified. 

If you were operating a commercial motor vehicle and you refuse to submit to a test, or your test result indicates an alcohol concentration of 0.04 or 

more, your CDL or privilege will be disqualified for 1 year for a first offense; 3 years for a first offense while transporting hazardous materials 

required to be placarded; and lifetime for a second or subsequent offense. 

• Your driver’s license or privilege will be suspended on the 46th day after the date of the Order of Suspension if: 

(1) You do not request a hearing with 10 days of the date of the Order of Suspension; (2) You fail to appear for a hearing; (3) At the conclusion of the 

hearing, a decision is rendered against you. Your request for a hearing will be invalid if submitted without the required $15.00 filing fee. 

• Certification: 

I, the undersigned police officer, certify that I have advised the driver of the above stated Advice of Rights. This included advising the driver of the 

sanction to be imposed for /1) A refusal to take a test; (2) A test resulting in an alcohol concentration of 0.08 or more, and (3) Advising of sanction for a 

test refusal or a test resulting in an alcohol concentration of 0.04 or more while operating a commercial motor vehicle. 

Read Before Signing: 

I, the undersigned driver, acknowledge that I have been read or have read the above stated Advise of Rights as certified by the police officer. I understand 

that this requested test is in addition to any preliminary tests that were taken. 

Having been advised, do you now agree to submit to a test? (This is not an admission of guilt.) 

(Officer check reply) 

 Yes-Agree to submit to an alcohol concentration test  Yes-Agree to submit to a test for drug or controlled dangerous substance (CDS) 

 No-alcohol concentration test refused  No-drug or CDS test refused (DRE must complete & submit DRE Certification Form) 

Driver Signature ________________________ Date __________ Time _________ Dr-15 control # _____________ 

Signature of Officer __________________________ I.D. No. ______________ Police Agency _____________
 73 

APPENDIX E 

Florida Implied Consent Warning 
 74 

IMPLIED CONSENT WARNING 

STATE OF FLORIDA 

DEFENDANT’S NAME AGENCY CASE NUMBER 

 BREATH TEST

I am now requesting that you submit to an approved test of your breath for the purpose of determining the 

alcoholic content of your breath. 

 OR 

 URINE TEST

I am now requesting that you submit to a test of your urine for the purpose of determining 

the presence of any chemical or controlled substance. 

 OR

 BLOOD TEST

I am now requesting that you submit to an approved test of your blood for the purpose of determining its 

alcoholic content and/or the presence of any chemical or controlled substance. 

Will you take the test?  YES  NO 

If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended 

for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously 

suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood. Additionally, if you refuse 

to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior 

refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to 

submit to the test I have requested of you is admissible into evidence in any criminal proceeding. 

Do you still refuse to submit to this test knowing that your driving privilege will be suspended for a period of at least 

one year and that you will be charged criminally for a subsequent refusal? 

  YES  NO 

DATE TIME DEFENDANT’S SIGNATURE (YOUR SIGNATURE IS NOT AN 

ADMISSION OF GUILT) 

ARRESTING OFFICER (PRINT NAME AND 

ID#) 

BREATH TEST OPERATOR (PRINT NAME 

AND ID#) 
This publication is distributed by the U.S. Department of Transportation, National Highway Traffic Safety 

Administration, in the interest of information exchange. The opinions, findings and conclusions expressed 

in this publication are those of the author(s) and not necessarily those of the Department of Transportation 

or the National Highway Traffic Safety Administration. The United States Government assumes no liability 

for its content or use thereof. If trade or manufacturers’ names or products are mentioned, it is because they 

are considered essential to the object of the publication and should not be construed as an endorsement. The 

United States Government does not endorse products or manufacturers.
DOT HS 809 876

August 2005