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Home > DWI Guide > Refusing the Breathalyzer Test


After you have been arrested, the officer must advise you that the consequences of refusing the breathalyzer or other testing are: (a) the refusal to submit to the test may be used against you in a criminal prosecution and (b) that your license will be immediately revoked for one year if you refuse. If you then refuse the test, the officer will serve you with a refusal notice. You then have 30 days from the date of your arrest to file a petition for review in the circuit court of the county of your arrest, although the revocation will go into effect after 15 days unless otherwise stayed. The circuit court can and normally will grant a stay order pending a trial before a traffic court commissioner or judge in a refusal case, depending on your driving history.

If you timely appeal file a petition for review, the issues before the court are (1) whether or not there was probable cause to believe you were operating a motor vehicle while in an intoxicated condition; (2) whether you were arrested; and (3) whether you were informed of your implied consent warnings and then refused to take the breath or blood test. The Director has the burden of proof on all issues.

If you do not file a petition for review, or the court rules in favor of the DOR on your petition for review, your license will be suspended for 1 year. If you have not previously refused a breath test, and you are otherwise eligible, you may be able to obtain a hardship driving privilege to drive in connection with your education and/or employment after you have served the first 90 days of your revocation. You will not be eligible for a hardship license if you have received a prior hardship exception in the last five years, you have a felony DWI conviction on your record, you have a prior license revocation for refusing the a breathalyzer test, among other reasons.

The fact of refusal can be introduced into evidence as "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal.

The decision whether or not to take the breathalyzer test is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing. You should request the opportunity to consult with a lawyer before making this decision. In Missouri, you must be allowed 20 minutes to call an attorney.


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