DUI Roadside Breath Test Laws by State
There is a significant difference in the way individual states regulate roadside breath tests, also known as preliminary breath tests (PBT) and preliminary alcohol screening (PAS). A chemical test to assess a driver’s blood alcohol concentration (BAC) is conducted at a police station or hospital after a driver has been arrested for suspicion of drunken driving. This test falls under implied consent laws that are on the books in every state in the country. As a trade-off for the privilege of driving in the state, drivers consent in advance to submit to a chemical test if requested by an officer with probable cause to suspect impaired driving.
However, the first test many law enforcement officers will request takes place in the field before an arrest. It is either a field sobriety test or a roadside breath test, although many states consider the roadside breath test a part of the field sobriety tests. In the case of a preliminary breath test (PBT), criminal defense attorneys say implied consent laws do not apply. In a majority of states, drivers can refuse the PBT without any penalty. However, about 1 out of 4 states impose some type of sanction, and it’s important for drivers to know the law in their state before refusing or submitting to a roadside breath test.
(Click on the name of the state for more about how to handle a DUI stop in your state)
Alabama – Alabama is among a small group of states that require young drivers to consent to a PBT or receive a traffic ticket. Adult drivers can refuse this roadside test without any penalty whatsoever.
Alaska – A handful of states have implied consent laws that include the roadside breath test. That’s the case in Alaska, where refusing to submit to the portable breath test is a Class B misdemeanor. Class B misdemeanors are punishable by up to 90 days in jail and a fine of up to $2,000.
Arizona – Refusing to submit to a roadside breath test is within the rights of all drivers.
Arkansas – There is no penalty under Arkansas law for refusing a roadside breath test.
California – In San Diego and elsewhere throughout the state, criminal defense attorneys advise motorists to refuse to consent to a roadside breath test.
Colorado – The results of a PBT are not admissible in Colorado and there is no penalty for refusing this test.
Connecticut – There is no penalty associated with refusing to submit to a roadside breath test.
Delaware – Delaware lawmakers have included the PBT in a state statute, but the test is voluntary.
Florida – Adults can refuse the PBT, but any driver under the age of 21 in Florida is required to consent to this test, as well as a chemical test, if requested by a law enforcement officer. The penalty is a civil infraction.
Georgia – While the PBT is one of three roadside tests approved by Georgia lawmakers, drivers are not required to submit when requested by a law enforcement officer.
Hawaii – A driver can refuse the preliminary alcohol screening test, and state law requires officers to tell the public they can refuse to take the test when making a request.
Iowa – The PBT is mentioned in Iowa’s implied consent law; however, drivers can refuse to take the test without any penalty.
Idaho – Drivers can refuse the roadside breath test, although criminal lawyers point out that generally won’t stop the police officer from making an arrest for suspicion of DWI and the requesting a chemical test.
Illinois – The PBT is no different from other field sobriety tests. All can legally be refused without penalty.
Indiana – There are no sanctions in Indiana for refusing a roadside breath test.
Kansas – Refusing a PBT is not the same as refusing the chemical test in Kansas. A driver could be given a ticket, but can refuse to take the ticket, according to a criminal defense attorney.
Kentucky – The PBT, along with other field sobriety tests, can be refused by a driver. Criminal attorneys note the police officer may look for other means of establishing probable cause that a driver was impaired, but this takes away a couple of traditional options.
Louisiana – The only negative for refusing a breath test before being arrested in Louisiana is that your refusal will be included in the court case against you. However, criminal lawyers point out that all field sobriety tests seem designed for drivers to fail, so consenting to them makes no sense.
Maine – A preliminary breath test is an attempt by a police officer to establish probable cause for a DUI arrest. Drivers will not be punished for refusing the test.
Maryland – There is no mandate in Maryland for refusing to consent to a PBT.
Massachusetts – The result of a PBT is not admissible in court in Massachusetts, even if you fail the test. There is no reason to take the test, according to criminal attorneys and there is no penalty.
See also: First DUI Conviction: Penalties for Each State
Michigan – There is a penalty in Michigan for refusing a PBT. But it is a civil infraction – the equivalent of a traffic ticket– and criminal defense attorneys generally recommend drivers politely refuse to take the test.
Minnesota – One of the reasons the PBT is not admissible in court can– and should be refused – is that it is the portable breathalyzer device is not nearly as scientifically reliable as the tabletop model.
Mississippi – The PBT is voluntary even though many drivers in the state seem to confuse the difference between the PBT and the chemical test.
Missouri – There is no penalty for refusing the PBT. Criminal defense attorneys point out refusing the test almost certainly won’t end the drunken driving investigation. However, the refusal makes it a bit more difficult for an officer to come up with probable cause to make a DUI arrest.
Montana – The state is one of just a few in the country that has included preliminary alcohol assessment under the implied consent law. Drivers who refuse the roadside breath test face a license suspension of up to 1 year.
Nebraska – Rather than include the PBT under the state’s Implied Consent Law, lawmakers in Nebraska created a separate law that makes refusing the roadside breath test a traffic infraction punishable by a fine of up to $100.
Nevada – A driver will have his or her driver’s license suspended, and then face an administrative hearing, notwithstanding any criminal case by the state.
New Hampshire – Drivers can refuse the PBT without penalty in New Hampshire, and state law requires officers to explain that taking or refusing the roadside breath test has no effect on whether any additional tests may be requested.
New Jersey – The PBT is voluntary only because the results are not admissible in court.
New Mexico – Refusing the roadside breath test is not the same as refusing the chemical test in New Mexico.
New York – There are two roadside breath tests in New York, one which can be refused without penalty and one that cannot. The penalty is generally 2 points on a driver’s license. Criminal defense attorneys say the best course of action is to refuse all roadside tests.
North Carolina – Drivers can refuse the PBT without penalty.
North Dakota – The state distinguishes between other field sobriety tests and the PBT. Refusing the roadside breath test instead triggers the same potential penalty as a DUI – up to 180 days in jail and a minimum fine of $500 – but if the driver then consents to a chemical test, there usually is no punishment.
Ohio – The PBT can be refused by a driver. Criminal defense attorneys say there are many conditions that can lead to an unusually high reading and that explains why the results are not admissible in Ohio courts.
Oklahoma – The PBT is not a part of the state’s implied consent law and drivers may refuse a PBT without any penalty.
Oregon – The state is unique in that law enforcement officers do not use roadside breath tests.
Pennsylvania – Drivers are not required to take the roadside breath test in Pennsylvania. Interestingly, the law does not require police officers to explain that fact to drivers stopped for suspicion of DUI.
Rhode Island – While the PBT is not part of the implied consent law in the state, drivers can be ticketed for refusing to take a roadside breath test. The fine is $85.
South Carolina – The PBT is considered another field sobriety test in South Carolina and drivers are free to refuse all field sobriety tests.
South Dakota – There is a distinct difference between the chemical test covered by the implied consent law and the roadside breath test. Drivers do not have to consent to this test.
Tennessee – All field sobriety tests, including the PBT, can be refused without penalty.
Texas – Like many states, Texas does not allow the results of roadside breath tests in court and drivers do not have to submit to this test.
Utah – Drivers face no penalty for declining to submit to a roadside breath test.
Vermont – The results of a PBT are not admissible in courts in Vermont and there is no penalty for refusing to consent to a test.
Virginia – Drivers should always refuse a PBT because there is no penalty and the test is unreliable, according to criminal defense attorneys.
Washington – The PBT exists only to help an officer determine probable cause. Drivers do not have to submit to the test and it is not covered by the Implied Consent Law.
West Virginia – Like a majority of states, West Virginia does not penalize a driver for refusing a roadside breath test.
Wisconsin – Drivers do not have to consent to a roadside breath test, but that may not avoid an arrest for suspicion of DUI if the officer is already convinced.
Wyoming – There is no law on the books regarding PBT’s in Wyoming, and drivers are not penalized for refusing a test.