The short answer is yes, you should submit to the breath test. Failing to take the breath test could result in more serious penalties, a longer license revocation and possible forfeiture of the vehicle involved.
However, up until June 23, 2016 the answer to that question was in flux due to a Minnesota case which was pending before the United States Supreme Court. In the case of State v. Bernard, the Supreme Court addressed the question of whether or not the state of Minnesota could criminalize a driver’s refusal to submit to a breath test. In Bernard, the Supreme Court ruled that the police do not need a search warrant to require a driver to submit to a breath test because the search is allowed as “incident to arrest.” Because the state does not need a warrant for a breath test, the state can criminalize a driver’s refusal to submit to the test.
Because of the ruling of the United States Supreme Court, a driver who refuses to submit to a breath test (assuming the officer had probable cause the driver was impaired or the driver refused or failed a preliminary breath test) can be charged with a more serious crime and will face a longer license revocation.
For example, a driver who has an alcohol content of .08 to .15 will face a 90 day license revocation and a misdemeanor charge (up to 90 days in jail and a $1000 fine or both). However, if the driver refuses to take the test, the license revocation is for one year and the driver will face a gross misdemeanor charge (up to one year in jail and a $3000 fine or both).**
If it’s a second offense within 10 years and the driver has an alcohol content of .08 to .15, the driver’s vehicle will not be subject to forfeiture. However, if the driver refuses the test, the vehicle will be subject to forfeiture. Additionally, license revocation will go from one year to two years if the driver refuses.
The above examples illustrate the harsher penalties, harsher license revocations, as well as vehicle forfeitures that can result from refusing a breath test.
If a person is arrested for a DWI and is asked to submit to a breath test, they have a limited right to consult with an attorney before making a decision about testing. A driver should exercise that right and contact an attorney prior to making a decision about submitting to the test or not. The driver’s decision can have a big impact on the eventual charges that they face as well the consequences.
**Worth noting is that in some cases a driver with a first-time DWI with a test at the .16 or greater level may be better off refusing the test. This is because if the driver tests at the .16 or more level, they will be subject to mandatory bail of $12,000 (or an alcohol monitor) while they await trial (as opposed to no mandatory bail or alcohol monitor for a first-time test refusal). Additionally, a first-time offender who loses their license for a year for refusing can have their license revocation reduced to 90 days if they are convicted of test refusal. Alternatively, the one year license revocation for refusing is reduced to 30 days if they are convicted of a DWI. A driver who tests at the .16 or greater level, will not get the reduction in the license revocation with a plea to a DWI or test refusal.