Should I refuse to take a DWI breath test?

The types of breath tests

If you ever get pulled over on suspicion of driving while intoxicated, you may have to take two different types of breath tests. The first test the officer might give you is called a preliminary breath test “PBT”. This test is given to decide whether the officer is going to arrest you for DWI and cannot be used against you during trial. The second test is called the DataMaster “DMT”. The DMT will usually be given at the police station or jail to determine if you are going to be charged with DWI.

Should I refuse the PBT?

Taking a PBT is voluntary, and no officer can force you to do it. But they do not have to tell you it is voluntary. Again, the purpose of this test is only to help the officer gather evidence against you, so it may be better not to take the test. However, most of the time the officer is going to arrest you if you refuse to take the test, if they have enough other evidence that you are intoxicated. This could include smelling alcohol, observing your physical movements, or how you performed on field sobriety tests.

The DMT test

If you are arrested for DWI, Minnesota law requires you to take a breath test to determine if you are impaired. If you do not take the test, you will be charged with at least the gross misdemeanor offense of DWI refusal, and you will likely be booked into jail until you go to court. However, if your breath test result is going to be .16 or greater you will certainly be charged with a gross misdemeanor DWI.

Should I refuse the DMT?

A lawyer cannot advise you to refuse the test because they cannot tell you to break the law. But they can tell you what will happen if you take the test versus if you refuse. First, you should not refuse the test if you believe that your blood alcohol content (“BAC”) will be below .16 and it is your first DWI. If you do refuse the test in this case, you will face a higher charge and more serious license consequences. However, if you believe your BAC will be .16 or greater and it is your first DWI in your lifetime, refusing the test will result in less serious license consequences. Each situation is specific, so you should speak to an attorney prior to taking the DMT. Learn more about your right to an attorney during a DWI stop, see this article.

Use your attorney time before you take the DMT

Law enforcement is required to give you time to speak with an attorney prior to taking the DMT, but not the PBT. Use this time wisely to speak with an attorney. They can advise you on the possible consequences of refusing versus taking the breath test.
For some clear do’s and don’ts during a DWI stop, see this FAQ. 

The Attorneys at Sieben & Cotter can assist you in making your decision regarding breath testing during a DWI stop. Call or send a message to get help.