Refusal to Submit to a Breathalyzer in Alaska: Penalties and Defense Strategies

When pulled over by the police in Anchorage, Kenai, or Wasilla on suspicion of drunk driving, many people mistakenly believe they have the "right to remain silent" by refusing a breath test. While you are generally allowed to refuse the handheld roadside breathalyzer (PBT) without criminal penalties, refusing the official breath test at the police station is an entirely different matter.

Under Alaska's "Implied Consent" laws, driving on public roads is a privilege, not a right. By obtaining an Alaska driver's license, you legally consent to chemical testing if an officer has probable cause to arrest you for an OUI. Refusing this official test triggers aggressive criminal charges that are often harder to fight than the DUI itself. If you have been charged with refusal, you must secure a tough Alaska defense attorney from our directory to challenge the procedures used during your arrest.

The Crime of Refusal in Alaska (AS 28.35.032)

Refusing to submit to a chemical test is a Class A Misdemeanor. The state treats a refusal almost identically to a standard DUI. The mandatory minimum penalties include 3 days in jail, a $1,500 fine, mandatory IID installation, and the completion of the Alcohol Safety Action Program (ASAP). If you have prior DUI convictions, the refusal penalties escalate into severe felony territory with years of potential prison time.

Step-by-Step Breakdown of the Breathalyzer Process

To convict you of refusal, the police and prosecutors must prove they followed strict procedural rules. If an officer skips a step, your lawyer can move to have the charges thrown out.

Step 1: The Implied Consent Warnings

Before an officer can charge you with refusal, they must clearly read you the Implied Consent Warning. They must inform you that refusing the test is a crime, that your refusal can be used against you in court, and that your privilege to drive will be immediately suspended. If the officer failed to warn you of these consequences, your refusal may not be legally valid.

Step 2: The 15-Minute Observation Period

Before administering the official test, the officer must observe you continuously for at least 15 minutes. This is to ensure you do not burp, vomit, or put anything in your mouth (like gum or chewing tobacco) that could introduce "mouth alcohol" and cause a false positive. If the officer leaves the room or is distracted by their phone during this window, the integrity of the test process is compromised.

Step 3: The DataMaster DMT Breathalyzer

Alaska law enforcement agencies rely on the DataMaster DMT machine for official station breath tests. You must provide a sustained, deep lung breath sample into this machine. Merely "blowing lightly" or stopping too early will be registered by the machine as a "deficient sample," which the officer will immediately mark down as a refusal, even if you were trying your best.

Step 4: Forced Blood Draws with a Search Warrant

If you refuse the breathalyzer, the ordeal is not over. The police can, and often will, contact a judge electronically to secure a search warrant for your blood. Once a judge signs the warrant, the police can use reasonable physical force to strap you down and draw your blood against your will. You will then be charged with both the OUI (based on the blood results) and the crime of Refusal.

Defense Strategies Against a Refusal Charge

Fighting a refusal charge requires attacking the science and the legality of the police encounter.

Medical Inability to Provide Adequate Breath Volume

Many individuals genuinely try to blow into the DataMaster DMT but fail because the machine requires a forceful, continuous breath. If you suffer from asthma, COPD, severe anxiety, or a recent chest injury, it may be physically impossible for you to provide the required volume. An attorney can use your medical records and expert testimony to prove that your "deficient sample" was a medical failure, not a willful refusal.

Lack of Probable Cause for the Initial Stop

If the officer did not have a valid, legal reason to pull your car over in the first place (e.g., they pulled you over based on a vague anonymous tip without witnessing any erratic driving), the entire traffic stop is unconstitutional. A skilled lawyer will file a "Motion to Suppress." If the judge agrees the stop was illegal, the subsequent arrest, the implied consent warnings, and the refusal charge must be entirely dismissed.

How Much Does a Refusal Conviction Cost?

Frequently Asked Questions (FAQ)