Breath test refusal is a separate offense for which the court imposes separate punishments in addition to those for drunk driving.
Elements. The State must prove each of these elements by a preponderance of the evidence (i.e., more likely than not) before the court can convict you of breath test refusal:
• 1. The arresting officer had probable cause to believe that you were driving or in actual physical control of a motor vehicle on the public highways or quasi-public areas of this state while under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana.
• 2. You were arrested for drunk driving.
• 3. The officer asked you to submit to a breath test.
• 4. You refused to submit.
Defenses. There are few defenses to breath test refusal. They include confusion about your legal obligation to submit a breath sample (not confusion caused by intoxication) and a physical inability to give sufficient breath samples due to certain medical conditions (e.g., trauma, emphysema, asthma).
