Loopholes in State Breath Tests.

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 states, plus Guam and the Virgin Islands, have enacted mandatory minimum fines for first-time drunk drivers; 20 states have mandatory imprisonment for first-time offenders, and almost every state and territory has mandatory jail time for a second offense.

In effect, the disparity in punishment for refusal vs. failure of the test gives drivers the choice between a certain license suspension or the possibility of a license suspension, fine and jail. Many drivers realize they're better off taking the test, but for those who know chances are they're going to fail, refusing to take the test may be in their best interest.

To make refusals less attractive, four states--Alaska, Nebraska, Ohio and Rhode Island--have added significant fines and jail time as penalties for refusing a BAC test, in addition to a suspension of driving privileges. New Jersey has established fines for refusal, while Arkansas fines drivers 21 and under for refusals, and Indiana enhances penalties for refusing a test if there has been an injury accident as a result of suspected drunk driving.

To find out more about state drunk driving laws, visit NCSL's drunk driving information page at www.ncsl.org/programs/lis/dui/ duihome.htm.