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  • Writer's pictureDavid A. Cmelik Law PLC

What is a DUI breath test refusal: criminal lawyer explains

Simply put, a desktop breath test refusal is anything that is not a forthright consent in response to a request for a breath sample. Conditional or equivocal responses are typically considered refusals by the Court under Iowa law.


For example, it may seem counterintuitive, but a breath test consent conditioned on the presence of an attorney is typically considered a refusal to test. The administering officer has no duty to procure an attorney for the test subject—even though the subject may make a “reasonable” number of telephone calls to get one to advise him or her.


It may be a different kind of violation if the administering officer fails to allow the subject to seek an attorney, family member, or loved one by telephone within a “reasonable” amount of time prior to the final request for the test. But it is not the officer’s duty to get a lawyer present to make the decision. Therefore, conditioning a breath sample on the presence of an attorney is effectively a refusal under Iowa criminal law.


Simply put, a desktop breath test refusal is anything that is not a forthright consent to test following the implied consent advisory and a formal request for a breath sample. Conditional or equivocal responses are typically considered refusals by the Court under Iowa law. On a granular level, the request for a bodily sample for chemical testing is a request for a waiver of the Fourth Amendment—not the Fifth. That’s because extracting a breath, blood, or urine sample is a search of your person that might otherwise require a warrant.


Therefore, if a test subject does anything other than fully consent to the breath test, it may be considered a refusal by the court.


What can the prosecutor do with a refusal? They can use it as evidence of the subject’s guilt at jury trial. The relevant jury instruction states that, while the subject has no duty to provide a breath sample, the jury may take it into consideration in reaching a verdict.


If you have been arrested for Operating While Intoxicated in Iowa, sometimes called DUI in other states, contact us for an initial consultation.





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