Loopholes in State Breath Tests.

• Position: Brief Article

When suspected drunk drivers are pulled over by the police, they are supposed to take a test to determine if they are driving under the influence of alcohol or drugs. But that doesn't always happen.

State implied consent laws, which tie the privilege of a driver's license to a consent to DUI tests if pulled over, were supposed to eliminate the option of refusing a blood alcohol content (BAC) test for suspected drunk driving. For the most part, the laws have been successful, as most drivers do submit to the tests.

But with increasing frequency, drivers are realizing they have a choice: Do they want to be punished for refusing to take the test or do they want to be punished for drunk driving?

To give implied consent laws some teeth, most states suspend the driver's license of a person who refuses to take a BAC test. For a first refusal, license suspension periods range from 10 days to one year, with the typical sanction being a three- to six-months suspension.

For a second refusal, a one-year license suspension is the typical punishment; some states provide for two years. Those are significant penalties, and all but six states--Kentucky, Louisiana, Oklahoma, South Carolina, South Dakota and Tennessee--provide for mandatory suspension of a person's driving privileges to punish those who refuse to take the test.

On the other hand, in most states, if suspected drunk drivers take and fail BAC tests, on conviction they will still have their driver's license suspended, and also be subject to hefty fines and jail time.

Twenty-eight...