A first refusal generally leads to an administrative license revocation of at least 90 days, with substantially longer revocations for prior DUI or refusal history, handled through DMV administrative review. Refusal of a chemical test can be charged as a separate crime or used to enhance sentencing depending on prior history. Birchfield allows criminal penalties for breath refusal; criminalizing warrantless blood refusal is constrained. That is what separates Alaska refusing a breathalyzer from a generic national summary. Read Alaska Stat. § 28.35.031 before the background sections below. Alaska drivers are deemed to consent to breath, blood, or urine chemical testing when lawfully arrested for driving under the influence under Alaska Stat. § 28.35.031. Officers must advise of the administrative and criminal consequences of refusal.
License suspension and administrative hearings
A first refusal generally leads to an administrative license revocation of at least 90 days, with substantially longer revocations for prior DUI or refusal history, handled through DMV administrative review.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Criminal consequences of refusal
Refusal of a chemical test can be charged as a separate crime or used to enhance sentencing depending on prior history. Birchfield allows criminal penalties for breath refusal; criminalizing warrantless blood refusal is constrained.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. Alaska statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Refusal is generally admissible in the DUI trial and may support an inference that the driver believed the test would show impairment.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search Alaska opinions for “refusal” and “implied consent.”
A concrete Alaska scenario
Here is one way the Alaska pieces fit together. Change any fact and the statute may point somewhere else.
A driver is arrested for DUI in Alaska and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Alaska Stat. § 28.35.031: A first refusal generally leads to an administrative license revocation of at least 90 days, with substantially longer revocations for prior DUI or refusal history, handled through DMV administrative review.
- Separate that track from the criminal case: Refusal of a chemical test can be charged as a separate crime or used to enhance sentencing depending on prior history. Birchfield allows criminal penalties for breath refusal; criminalizing warrantless blood refusal is constrained.
- Ask whether the refusal can be argued to the jury: Refusal is generally admissible in the DUI trial and may support an inference that the driver believed the test would show impairment.
- If the request is for blood rather than breath, apply the warrant rule: Breath testing is the usual roadside and station implied-consent path. Blood draws for criminal prosecution typically require a warrant unless a recognized exception applies, consistent with Birchfield and Alaska case law.
In Alaska the refusal question is answered first by Alaska Stat. § 28.35.031, then by the administrative deadline and the criminal case.
Breath tests versus blood tests
Breath testing is the usual roadside and station implied-consent path. Blood draws for criminal prosecution typically require a warrant unless a recognized exception applies, consistent with Birchfield and Alaska case law.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research Alaska opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Alaska
ANCHORAGE, a Municipal Corporation, Appellant, v. Arthur GEBER, Appellee; David EARLEY, Appellant, v. STATE of
…ture of Alaska enacted what is commonly known as the Alaska Implied Consent Statute. Ch. 83, § 1, SLA 1969. This enactment, codified as AS 28.-35.031-034, is entitled: “An act relating to chemical tests as to alcoholic content of blood when operating or driving a motor vehicle under the influence of intoxicating liquor.” It amended AS 28.35 by adding several new sections, inclu…
ANCHORAGE, a Municipal Corporation, Appellant, v. Arthur GEBER, Appellee; David EARLEY, Appellant, v. STATE of is worth reading on Alaska implied consent / breathalyzer refusal because the court put the point in its own words: "Alaska enacted what is commonly known as the Alaska Implied Consent Statute. Ch. 83, § 1, SLA 1969. This enactment, codified as AS 28.-35." Use that passage as the starting point, then read the facts that precede it.
Juan SOSA, Petitioner, v. STATE of Alaska, Respondent
Juan SOSA, Petitioner, v. STATE of Alaska, Respondent, 2000 Alas. LEXIS 62 (2000)
…ice. I, INTRODUCTION In two specific cireumstances Alaska's implied consent statutes permit a driver's blood to be drawn for chemical testing for evidence of driving while intoxicated (DWI). Those cireamstances do not include unavailability of a breath testing device. 1 Because no functioning breath testing device was then available, a magistrate issued a search warrant permitt…
Juan SOSA, Petitioner, v. STATE of Alaska, Respondent is worth reading on Alaska implied consent / breathalyzer refusal because the court put the point in its own words: "I, INTRODUCTION In two specific cireumstances Alaska's implied consent statutes permit a driver's blood to be drawn for chemical testing for evidence of driving while intoxicated (DWI). Those cireamstances do not include unavailability of a breath testing device." Use that passage as the starting point, then read the facts that precede it.
Manuel R. PENA, Jr., Appellant/Petitioner, v. STATE of Alaska, Appellee/Respondent; Richard RYCHART
…appeal their convictions arguing that, in light of Alaska’s Implied Consent Statutes, results of the non-consensual chemical sobriety tests were improperly admitted into evidence. In 1969 the Alaska Legislature passed the Alaska Implied Consent Statute, which at the time of Pena’s and Rychart’s arrests provided in part: AS 28.35.031 IMPLIED CONSENT A person who operates or driv…
On implied consent / breathalyzer refusal, Manuel R. PENA, Jr., Appellant/Petitioner, v. STATE of Alaska, Appellee/Respondent; Richard RYCHART speaks to the Alaska dispute in this passage: "Alaska’s Implied Consent Statutes, results of the non-consensual chemical sobriety tests were improperly admitted into evidence. In 1969 the Alaska Legislature passed the Alaska Implied Consent Statute, which at the time of Pena’s and Rychart’s arrests provided in part: AS 28.35." The surrounding opinion shows how the court applied that language to the record.
James LUNDQUIST and Alice Lundquist, Individually and as Personal Representatives of the Estate of Dana J
…submit to a breath-analysis test, in violation of Alaska’s implied consent law, AS 28.35.031. 2 The report of Koch’s refusal was received by the Department on July 13, 1979. Pursuant to AS 28.35.032, the Department sent a letter to Koch notifying him that his license was revoked for a period of ninety days beginning August 2,1979. On July 29, after he had been drinking, Koch d…
Alaska opinions such as James LUNDQUIST and Alice Lundquist, Individually and as Personal Representatives of the Estate of Dana J are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Alaska’s implied consent law, AS 28.35.031. 2 The report of Koch’s refusal was received by the Department on July 13, 1979. Pursuant to AS 28.35.032, the Department sent a letter to Koch notifying him that his license was revoked for a period of ninety days beginning August 2,1979." That is the language to brief; the rest of the decision supplies the procedural posture.
Manuel Robert PENA, Jr., Appellant, v. STATE of Alaska, Appellee
Manuel Robert PENA, Jr., Appellant, v. STATE of Alaska, Appellee, 1983 Alas. App. LEXIS 310 (1983)
…o submit to a breathalyzer test is prohibited by the Alaska Implied Consent Statute, AS 28.35.-031-.034. The two crucial provisions of this statute for purposes of Pena’s claim are contained in AS 28.35.031 and AS 28.35.-032(a). At the time of Pena’s offense, these provisions stated: AS 28.35.031. Implied Consent. A person who operates or drives a motor vehicle in this state sh…
On implied consent / breathalyzer refusal, Manuel Robert PENA, Jr., Appellant, v. STATE of Alaska, Appellee speaks to the Alaska dispute in this passage: "Alaska Implied Consent Statute, AS 28.35.-031-.034. The two crucial provisions of this statute for purposes of Pena’s claim are contained in AS 28.35.031 and AS 28.35.-032(a). At the time of Pena’s offense, these provisions stated: AS 28.35.031. Implied Consent." The surrounding opinion shows how the court applied that language to the record.
Patrick SUITER, Appellant, v. STATE of Alaska, Appellee
Patrick SUITER, Appellant, v. STATE of Alaska, Appellee, 1989 Alas. App. LEXIS 103 (1989)
…r did not respond to this request, Martin began to read the implied consent form which explained Suiter's obligation to take the Intoximeter test under the law. Suiter was yelling as the trooper read the implied consent form. When Martin was reading paragraph 6 of the implied consent form Suiter grabbed the form, put into his mouth, chewed it up, and then spit it out. Martin di…
Practitioners open Patrick SUITER, Appellant, v. STATE of Alaska, Appellee when Alaska implied consent / breathalyzer refusal turns on the distinction in this sentence: "Martin began to read the implied consent form which explained Suiter's obligation to take the Intoximeter test under the law. Suiter was yelling as the trooper read the implied consent form." Do not lift it out of the facts the court was deciding.
Ronald W. LIVELY, Appellant, v. STATE of Alaska, Appellee
Ronald W. LIVELY, Appellant, v. STATE of Alaska, Appellee, 1991 Alas. App. LEXIS 1 (1991)
…r Tom Martin. At the Kodiak Police Station, Martin read the implied consent form to Lively. Lively indicated that he understood the implied consent warnings. He refused to take the Intoximeter test. Martin did not ask Lively why he was refusing to take the test, nor did he advise Lively that he had a right to telephone an attorney before deciding whether to take the test. At th…
On implied consent / breathalyzer refusal, Ronald W. LIVELY, Appellant, v. STATE of Alaska, Appellee speaks to the Alaska dispute in this passage: "Tom Martin. At the Kodiak Police Station, Martin read the implied consent form to Lively. Lively indicated that he understood the implied consent warnings. He refused to take the Intoximeter test." The surrounding opinion shows how the court applied that language to the record.
Key takeaways
- Primary authority: Alaska Stat. § 28.35.031.
- Administrative hit: A first refusal generally leads to an administrative license revocation of at least 90 days, with substantially longer revocations for prior DUI or refusal history, handled through DMV administrative review.
- Criminal exposure: Refusal of a chemical test can be charged as a separate crime or used to enhance sentencing depending on prior history.
- Evidence: Refusal is generally admissible in the DUI trial and may support an inference that the driver believed the test would show impairment.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Implied consent in Alaska
Alaska drivers are deemed to consent to breath, blood, or urine chemical testing when lawfully arrested for driving under the influence under Alaska Stat. § 28.35.031. Officers must advise of the administrative and criminal consequences of refusal.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in Alaska appellate opinions.
Frequently asked questions
What happens if I refuse a breathalyzer in Alaska?
A first refusal generally leads to an administrative license revocation of at least 90 days, with substantially longer revocations for prior DUI or refusal history, handled through DMV administrative review. Refusal of a chemical test can be charged as a separate crime or used to enhance sentencing depending on prior history.
Is refusal a separate crime in Alaska?
Refusal of a chemical test can be charged as a separate crime or used to enhance sentencing depending on prior history. Birchfield allows criminal penalties for breath refusal; criminalizing warrantless blood refusal is constrained.
Will the prosecutor tell the jury I refused?
Refusal is generally admissible in the DUI trial and may support an inference that the driver believed the test would show impairment.
Do I need a warrant for a blood draw?
Breath testing is the usual roadside and station implied-consent path. Blood draws for criminal prosecution typically require a warrant unless a recognized exception applies, consistent with Birchfield and Alaska case law. See also Birchfield and McNeely linked above.