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Cedar Rapids OWI Lawyer: Once I refuse a breath test, can I change my mind?

by David A. Cmelik Law PLC


EDIT: The Iowa Supreme Court has held in Lukins in November 2020 that a defendant who asks imprecisely for a retest must be advised that they have a right to an independent chemical test. In other words, the right to an independent chemical test must be clarified in unclear circumstances. However, that is not the situation in Welch, which involved a refusal. There is no right to an independent chemical test when a subject refuses to consent to provide a bodily specimen pursuant to Iowa Code Sec 321J.6.

No. If a Cedar Rapids, Iowa City, or other Iowa municipal or Iowa county sheriff officer requests a bodily specimen and the OWI test subject refuses, the officer will mark the OWI test subject down as a refusal. He or she will have no right to withdraw the test refusal within the two hour period of time allotted for law enforcement officers to seek a sample.


In other words, the two hours is there to extend to the motorist and test subject a request for a bodily specimen so law enforcement, not the defendant, can take advantage of the presumption that the test result will presumably be equal to test subject’s blood alcohol content at the time of operation.


In Welch v. Iowa DOT, the Iowa Supreme Court examined this very question. A defendant initially unqualifiedly refused but then attempted to amend the refusal with consent. The Court noted transcribed the exchange as part of the decision:


TEST SUBJECT: Can I talk to anybody?

OFFICER: About what?

TEST SUBJECT: I'd like to go ahead and blow.

OFFICER: Excuse me?

TEST SUBJECT: I refused to blow earlier but I'd like to go ahead and blow.

OFFICER: Who was doing the testing?

TEST SUBJECT: What's that?

OFFICER: The officer in there did your testing? Hey Ryan?


TEST SUBJECT: I didn't want to and I refused it.

OFFICER: He refused to test right?

OFFICER KING: Yeah, he refused to even sign the box.


Welch v. Iowa DOT, 801 N.W.2d 590, 596 (Iowa 2011)


The Court held that:


“Our previous decisions establish that a broad definition of the term ‘refusal’ is more closely aligned with the legislative intent underlying the implied consent statute. In addition to explicit, unqualified refusals, we have found that failures to cooperate, conditional refusals, conditional assents, consents followed by a failure to provide the requested specimen, and consents followed by combative behavior all constitute refusals within the meaning of sections 321J.6(2) and 321J.9(1)”


Welch, 801 N.W.2d at 595.


The Court noted that, where Iowa Code § 804.20 (the right to a phone call to an attorney, family member, or attorney) is not at issue, there is a “one refusal” rule.


Welch, 801 N.W.2d 597.


In short, once you refuse, you have refused for good.


If you or a loved one has been arrested for Operating While Intoxicated (OWI) in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, commonly called DUI in other States, contact David A. Cmelik Law PLC at However, remember that a blog is not legal advice and that sending unsolicited information to an attorney over the internet does not establish an attorney-client relationship. ​

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No good choices  Once a Datamaster DMT breath test subject refuses to provide a test sample, there is no going back. Test administrators and arresting officers generally do not inform defendants that a test refusal could be used by the jury as evidence of guilt. However, they do advise test subjects that a refusal will result in an administrative revocation of the privilege to operate a motor vehicle in the State of Iowa for twice the length of a revocation resulting from test failure in most cases. The decision does require a snap judgment. But an attorney licensed to practice law in Iowa and limited exclusively to the practice of criminal law can assess the strength of such a case.  ​If you or a loved one has been arrested for OWI (DUI) or other offense in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, ​contact David A. Cmelik Law PLC at 319-389-1889.

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