If you only remember one point about refusing a breathalyzer in Arkansas, remember this: A first refusal typically results in a 180-day administrative license suspension; subsequent refusals carry longer suspensions, subject to Office of Driver Services review. Refusal can be a separate offense or sentencing aggravator depending on priors. Birchfield supports criminal penalties for breath refusal while generally requiring a warrant for blood draws used as a criminal penalty. Procedure, examples, and the opinions below hang off Ark. Code Ann. § 5-65-202. Arkansas motorists consent to chemical testing of breath, blood, or urine when arrested for driving while intoxicated under the Omnibus DWI Act. Officers must advise of the consequences of refusing the test.
Criminal consequences of refusal
Refusal can be a separate offense or sentencing aggravator depending on priors. Birchfield supports criminal penalties for breath refusal while generally requiring a warrant for blood draws used as a criminal penalty.
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. Arkansas statutes and case law implement those federal baselines with local detail.
Walking through Arkansas facts
Use this walkthrough to see which Arkansas authority does the work at each step.
A driver is arrested for DUI in Arkansas and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Ark. Code Ann. § 5-65-202: A first refusal typically results in a 180-day administrative license suspension; subsequent refusals carry longer suspensions, subject to Office of Driver Services review.
- Separate that track from the criminal case: Refusal can be a separate offense or sentencing aggravator depending on priors. Birchfield supports criminal penalties for breath refusal while generally requiring a warrant for blood draws used as a criminal penalty.
- Ask whether the refusal can be argued to the jury: Refusal evidence is ordinarily admissible in the DWI prosecution.
- If the request is for blood rather than breath, apply the warrant rule: Breath testing is the usual implied-consent request; blood testing may be compelled with a warrant or under recognized exceptions, especially in crash cases involving serious injury.
In Arkansas the refusal question is answered first by Ark. Code Ann. § 5-65-202, then by the administrative deadline and the criminal case.
Can refusal be used as evidence?
Refusal evidence is ordinarily admissible in the DWI prosecution.
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 Arkansas opinions for “refusal” and “implied consent.”
Breath tests versus blood tests
Breath testing is the usual implied-consent request; blood testing may be compelled with a warrant or under recognized exceptions, especially in crash cases involving serious injury.
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 Arkansas opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Arkansas
Bruce MACE v. STATE of Arkansas
Bruce MACE v. STATE of Arkansas, 328 Ark. 536 (1997)
…rights. Officer Moreno then requested that Mace submit to a breath-alcohol-content (BAC) test. Mace agreed to take the test, which revealed no alcohol in his bloodstream. Believing that Mace was under the influence of some type of drug, Officer Moreno then requested that Mace submit to a blood test. He also gave Mace the option of taking a urine test. According to Officer Moren…
Practitioners open Bruce MACE v. STATE of Arkansas when Arkansas implied consent / breathalyzer refusal turns on the distinction in this sentence: "Officer Moreno then requested that Mace submit to a breath-alcohol-content (BAC) test. Mace agreed to take the test, which revealed no alcohol in his bloodstream." Do not lift it out of the facts the court was deciding.
Mickie Gean JOHNSON v. STATE of Arkansas — Dudley, J., concurring
Mickie Gean JOHNSON v. STATE of Arkansas — Dudley, J., concurring, 314 Ark. 471 (1993)
…cause of a concern I have with Point III, which involves an implied consent form. We have had a number of appeals involving these forms over the last decade, and some of the cases have demonstrated some confusion by the police about the advice to be given motorists who are arrested for driving while under the influence of intoxicants. Normally, the police are required to advise…
Arkansas opinions such as Mickie Gean JOHNSON v. STATE of Arkansas — Dudley, J., concurring are cited where implied consent / breathalyzer refusal is disputed. The court stated: "I have with Point III, which involves an implied consent form." That is the language to brief; the rest of the decision supplies the procedural posture.
Ernie Charles METZNER, Appellant, v. STATE of Arkansas, Appellee
Ernie Charles METZNER, Appellant, v. STATE of Arkansas, Appellee, 2015 Ark. LEXIS 353 (2015)
…mplied-consent laws authorize warrantless-searches based on implied consent and that the statute proscribes only the war-rantless search when an accused refuses to ^submit to a chemical test at the request of a law enforcement officer. Further, the State contends that, because the statute addresses only the issue of implied consent and warrantless searches, it cannot effectivel…
Practitioners open Ernie Charles METZNER, Appellant, v. STATE of Arkansas, Appellee when Arkansas implied consent / breathalyzer refusal turns on the distinction in this sentence: "mplied-consent laws authorize warrantless-searches based on implied consent and that the statute proscribes only the war-rantless search when an accused refuses to ^submit to a chemical test at the request of a law enforcement officer. Further, the State contends that, because th" Do not lift it out of the facts the court was deciding.
Jack Jay PETERSON, Jr. v. STATE of Arkansas
Jack Jay PETERSON, Jr. v. STATE of Arkansas, 81 Ark. App. 226 (2003)
…ving while intoxicated, fifth offense, and violation of the implied consent law. The State also petitioned to revoke appellant’s thirty-six months’ suspended sentence for driving while intoxicated, fourth offense. At appellant’s April 4, 2002, jury trial on the driving while intoxicated charge and violation of the implied-consent law, the court also considered the revocation of…
Arkansas opinions such as Jack Jay PETERSON, Jr. v. STATE of Arkansas are cited where implied consent / breathalyzer refusal is disputed. The court stated: "The State also petitioned to revoke appellant’s thirty-six months’ suspended sentence for driving while intoxicated, fourth offense." That is the language to brief; the rest of the decision supplies the procedural posture.
Delmas SPICER v. STATE of Arkansas
Delmas SPICER v. STATE of Arkansas, 32 Ark. App. 209 (1990)
…y Municipal Court with DWI, first offense, violation of the implied consent law, speeding, driving left of center, resisting arrest and drinking in public. There, he was adjudged guilty of DWI, speeding and driving left of center, but the charges of resisting arrest and drinking in public were dismissed. For reasons not fully explained in the record, the transcript of the munic…
Arkansas opinions such as Delmas SPICER v. STATE of Arkansas are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Municipal Court with DWI, first offense, violation of the implied consent law, speeding, driving left of center, resisting arrest and drinking in public." That is the language to brief; the rest of the decision supplies the procedural posture.
Key takeaways
- Primary authority: Ark. Code Ann. § 5-65-202.
- Administrative hit: A first refusal typically results in a 180-day administrative license suspension; subsequent refusals carry longer suspensions, subject to Office of Driver Services review.
- Criminal exposure: Refusal can be a separate offense or sentencing aggravator depending on priors.
- Evidence: Refusal evidence is ordinarily admissible in the DWI prosecution.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Implied consent in Arkansas
Arkansas motorists consent to chemical testing of breath, blood, or urine when arrested for driving while intoxicated under the Omnibus DWI Act. Officers must advise of the consequences of refusing the test.
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 Arkansas appellate opinions.
License suspension and administrative hearings
A first refusal typically results in a 180-day administrative license suspension; subsequent refusals carry longer suspensions, subject to Office of Driver Services 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.
Frequently asked questions
What happens if I refuse a breathalyzer in Arkansas?
A first refusal typically results in a 180-day administrative license suspension; subsequent refusals carry longer suspensions, subject to Office of Driver Services review. Refusal can be a separate offense or sentencing aggravator depending on priors.
Is refusal a separate crime in Arkansas?
Refusal can be a separate offense or sentencing aggravator depending on priors. Birchfield supports criminal penalties for breath refusal while generally requiring a warrant for blood draws used as a criminal penalty.
Will the prosecutor tell the jury I refused?
Refusal evidence is ordinarily admissible in the DWI prosecution.
Do I need a warrant for a blood draw?
Breath testing is the usual implied-consent request; blood testing may be compelled with a warrant or under recognized exceptions, especially in crash cases involving serious injury. See also Birchfield and McNeely linked above.