It depends. You can and should refuse the portable breathalyzer test that is given roadside, before an arrest, that is used to help establish probable cause for your arrest. But if you’ve been arrested for DUI, refusing the breath, blood or urine test at the station or hospital is a separate crime. This is because Minnesota's “implied consent law” means that by driving on Minnesota roads, you have already consented to submit to chemical testing if an officer has probable cause to believe you're impaired.
Under Minnesota law, refusing a chemical test after a lawful arrest for DWI is generally charged as a crime at a level higher than the DWI.
This means:
- A first-time refusal will be charged as a gross misdemeanor, even when a first-time DWI with a low BAC would only be a misdemeanor
- Refusal can serve as an aggravating factor in future DWI charges
- You can be convicted of test refusal even if you are not ultimately convicted of DWI
Refusing a post-arrest chemical test triggers an automatic license revocation, separate from your criminal case — typically a longer revocation period than a DWI revocation with a test alone. But depending on your prior record, there are times when refusing is absolutely what is best. As with any DWI-related revocation, you have a limited window to request a hearing to challenge it.
If you've already refused testing, the case isn't over. An experienced attorney can help you by examining the following:
- Was the stop and/or arrest lawful?
- Did the officer properly invoke the implied consent law?
- Were you given a reasonable opportunity to contact an attorney before deciding?
Each of these can form the basis of a strong defense.
Sheridan & Dulas handles both DWI and test refusal cases throughout Minnesota. If you're facing a refusal charge, contact us for a free consultation.
