State Map

Every state has an implied consent law that stipulates that drivers consent to be tested if they are suspected of driving under the influence of alcohol and/or drugs. Test refusal (breath, blood, urine, etc.) is often the first step a drunk driver takes to avoid prosecution. Test refusals are most common among high-risk/repeat impaired drivers, primarily because these individuals know that their test results are likely to have a high-BAC and they are familiar with the system. In most states, the penalties for refusal involve administrative license suspensions ranging from 90 to 180 days. This is typically less punitive than the criminal sanctions for per se DUI.

On 6/23/2016 the Supreme Court of the United States (SCOTUS) ruled in Birchfield v. North Dakota that motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent. Since that time, a number of states that had criminal sanctions outlined in statute have begun the processing of amending legislation and now only permit civil sanctions. For example, both Kansas and Minnesota had criminal penalties for test refusal but the Supreme Court in each state ruled that the existing refusal laws violate the federal constitutional rights of drivers. States that still have criminal provisions in statute include AK, AR, FL, KY, ME, NE, ND, RI, VT, and VA. Also, in these states some caveats apply to when/how the law can be applied:

• Arkansas – law only applies to drivers under 21
• Florida – refusal becomes a misdemeanor if the driver’s license has previously been suspended for refusal
• Kentucky – refusal only carries criminal penalties if the individual is convicted of the DUI
• Louisiana – law only applies if the individual has refused to submit to a chemical test on two previous occasions
• Maine – refusal can be considered an aggravating factor at the time of sentencing
• Vermont – refusal only carries criminal penalties if the person has previously been convicted of DUI or is involved in a collision causing serious bodily injury/death

To learn more about test refusal penalties, refer to our policy position. To access in-depth analysis and statutes from each state, refer to this chart from the National Conference of State Legislatures (June 2018).

Have an update? Please contact Erin Holmes: [email protected]