Start with La. Rev. Stat. § 32:661. In Louisiana, A first refusal typically results in a one-year hard suspension of driving privileges; subsequent refusals carry longer suspensions, with an administrative hearing opportunity through the Department of Public Safety and Corrections. Refusal can be a separate offense and enhances OWI sentencing. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant. That is the question this guide answers for refusing a breathalyzer. Louisiana drivers consent to chemical testing when arrested for operating while intoxicated. Officers must advise of the consequences of refusal under the implied-consent law in title 32.
Implied consent in Louisiana
Louisiana drivers consent to chemical testing when arrested for operating while intoxicated. Officers must advise of the consequences of refusal under the implied-consent law in title 32.
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 Louisiana appellate opinions.
License suspension and administrative hearings
A first refusal typically results in a one-year hard suspension of driving privileges; subsequent refusals carry longer suspensions, with an administrative hearing opportunity through the Department of Public Safety and Corrections.
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.
How the Louisiana rule applies
Apply the Louisiana authorities in order. The facts are simplified so the statute and the standard are visible.
A driver is arrested for DUI in Louisiana and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under La. Rev. Stat. § 32:661: A first refusal typically results in a one-year hard suspension of driving privileges; subsequent refusals carry longer suspensions, with an administrative hearing opportunity through the Department of Public Safety and Corrections.
- Separate that track from the criminal case: Refusal can be a separate offense and enhances OWI sentencing. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
- Ask whether the refusal can be argued to the jury: Refusal is admissible in the OWI prosecution and may be argued as consciousness of guilt.
- If the request is for blood rather than breath, apply the warrant rule: Breath tests are standard at booking; blood draws are commonly obtained by warrant, especially when drugs are suspected or breath testing is unavailable.
In Louisiana the refusal question is answered first by La. Rev. Stat. § 32:661, then by the administrative deadline and the criminal case.
Criminal consequences of refusal
Refusal can be a separate offense and enhances OWI sentencing. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
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. Louisiana statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Refusal is admissible in the OWI prosecution and may be argued as consciousness of guilt.
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 Louisiana opinions for “refusal” and “implied consent.”
Breath tests versus blood tests
Breath tests are standard at booking; blood draws are commonly obtained by warrant, especially when drugs are suspected or breath testing is unavailable.
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 Louisiana opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Louisiana
Pickard v. State Dept. of Public Safety
Pickard v. State Dept. of Public Safety, 572 So. 2d 1098 (1990)
…urpose of statutes like I.C. s 18-8002(4), which establish "implied consent" to blood-alcohol tests and prescribe administrative penalties, such as license suspension, for refusing the tests. This purpose, as we observed in State v. Breed, 111 Idaho 497, 501, 725 P.2d 202, 206 (Ct.App.1986), "is to provide an incentive for motorists to cooperate in determining levels of blood-a…
On implied consent / breathalyzer refusal, Pickard v. State Dept. of Public Safety speaks to the Louisiana dispute in this passage: "I.C. s 18-8002(4), which establish 'implied consent' to blood-alcohol tests and prescribe administrative penalties, such as license suspension, for refusing the tests. This purpose, as we observed in State v. Breed, 111 Idaho 497, 501, 725 P.2d 202, 206 (Ct.App." The surrounding opinion shows how the court applied that language to the record.
Whitaker v. State, Dept. of Pub. Safety, Driv. Lic. Div.
Whitaker v. State, Dept. of Pub. Safety, Driv. Lic. Div., 264 So. 2d 725 (1972)
…eking to have R.S. 32:667 and R.S. 32:668 of the Louisiana "Implied Consent Law" declared unconstitutional and to have defendant enjoined from effectuating the required six-month suspension of plaintiff's driver's license and automobile owner registration certificates, as provided for by R.S. 32:667. Plaintiff alleged in his petition that he was involved in a minor automobile a…
Louisiana opinions such as Whitaker v. State, Dept. of Pub. Safety, Driv. Lic. Div. are cited where implied consent / breathalyzer refusal is disputed. The court stated: "R.S. 32:667 and R.S. 32:668 of the Louisiana 'Implied Consent Law' declared unconstitutional and to have defendant enjoined from effectuating the required six-month suspension of plaintiff's driver's license and automobile owner registration certificates, as provided for by R.S." That is the language to brief; the rest of the decision supplies the procedural posture.
Swan v. Department of Public Safety
Swan v. Department of Public Safety, 311 So. 2d 498 (1975)
…rovision of Louisiana Revised Statutes R.S. 32:661 et seq. (Implied Consent Statutes) you are requested to submit to a test to determine alcoholic content, if any, of your blood. "If you refuse to submit to testing to determine alcoholic content of your blood, the Department of Public Safety shall suspend your driver's license or permit to drive for a period of six months from…
Practitioners open Swan v. Department of Public Safety when Louisiana implied consent / breathalyzer refusal turns on the distinction in this sentence: "Louisiana Revised Statutes R.S. 32:661 et seq. (Implied Consent Statutes) you are requested to submit to a test to determine alcoholic content, if any, of your blood." Do not lift it out of the facts the court was deciding.
Allen v. State, Dept. of Public Safety
Allen v. State, Dept. of Public Safety, 1989 La. App. LEXIS 2461 (1989)
…cause a suspension of driving privileges as provided by the Implied Consent Law, LSA-R.S. 32:661 et seq. It was also explained to plaintiff that a similar suspension would result if a test were taken and yielded a blood alcohol level of .10 percent or above. Being thus provided the statutorily required information, plaintiff agreed to undergo a photoelectric intoximeter test, a…
Allen v. State, Dept. of Public Safety is worth reading on Louisiana implied consent / breathalyzer refusal because the court put the point in its own words: "Implied Consent Law, LSA-R.S. 32:661 et seq. It was also explained to plaintiff that a similar suspension would result if a test were taken and yielded a blood alcohol level of .10 percent or above." Use that passage as the starting point, then read the facts that precede it.
Mullens v. Department of Public Safety, Driv. Lic. D.
Mullens v. Department of Public Safety, Driv. Lic. D., 327 So. 2d 492 (1976)
…ohol in his blood pursuant to the various provisions of the implied consent law, R.S. 32:661, et seq. Mullens refused to subject himself to the test, and the police forwarded a statement certifying this fact to the Department of Public Safety. On the basis of this certification, the Department of Public Safety ordered the suspension of Mullens' driving privileges for a period o…
Practitioners open Mullens v. Department of Public Safety, Driv. Lic. D. when Louisiana implied consent / breathalyzer refusal turns on the distinction in this sentence: "R.S. 32:661, et seq. Mullens refused to subject himself to the test, and the police forwarded a statement certifying this fact to the Department of Public Safety." Do not lift it out of the facts the court was deciding.
State v. Graham
State v. Graham, 278 So. 2d 78 (1973)
…t without his consent. The trial court held that there was "implied consent" by virtue of La.R.S. 32:661 (1968). The accident occurred on December 5, 1971. At that time, the statutory regulation applicable was provided by La.R.S. 32:661 as enacted by Act 273 of 1968, Section 14. In substance, subsection A of La.R.S. 32:661 provides that a person operating a motor vehicle on a p…
On implied consent / breathalyzer refusal, State v. Graham speaks to the Louisiana dispute in this passage: "The trial court held that there was 'implied consent' by virtue of La.R.S. 32:661 (1968). The accident occurred on December 5, 1971. At that time, the statutory regulation applicable was provided by La.R.S. 32:661 as enacted by Act 273 of 1968, Section 14." The surrounding opinion shows how the court applied that language to the record.
Price v. Department of Public Safety
Price v. Department of Public Safety, 580 So. 2d 503 (1991)
…Plaintiff next complains that La. R.S. 32:661 et seq., the implied consent statute, is unconstitutional insofar as it provides that any person who operates a motor vehicle on Louisiana highways shall be deemed to have given consent to a chemical test to determine the alcoholic content of his blood. Plaintiff contends that "the implied consent law is a trap to the unwary that r…
Price v. Department of Public Safety is worth reading on Louisiana implied consent / breathalyzer refusal because the court put the point in its own words: "Plaintiff next complains that La. R.S. 32:661 et seq." Use that passage as the starting point, then read the facts that precede it.
State v. Fairleigh
State v. Fairleigh, 490 So. 2d 490 (1986)
…suspected drunken drivers provides for a presumption of an implied consent to the administration of chemical test under certain circumstances. R.S. 32 Sec. 661 through R.S. 32 Sec. 669, at Sec. 661: Part XIV. Tests for Suspected Drunken Drivers R.S. 32 Sec. 661. Operating a vehicle under the influence of alcoholic beverages; implied consent to chemical tests; administering of…
Practitioners open State v. Fairleigh when Louisiana implied consent / breathalyzer refusal turns on the distinction in this sentence: "R.S. 32 Sec. 661 through R.S. 32 Sec. 669, at Sec. 661: Part XIV. Tests for Suspected Drunken Drivers R.S. 32 Sec. 661." Do not lift it out of the facts the court was deciding.
Key takeaways
- Primary authority: La. Rev. Stat. § 32:661.
- Administrative hit: A first refusal typically results in a one-year hard suspension of driving privileges; subsequent refusals carry longer suspensions, with an administrative hearing opportunity through the Department of Public Safety and Corrections.
- Criminal exposure: Refusal can be a separate offense and enhances OWI sentencing.
- Evidence: Refusal is admissible in the OWI prosecution and may be argued as consciousness of guilt.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Frequently asked questions
What happens if I refuse a breathalyzer in Louisiana?
A first refusal typically results in a one-year hard suspension of driving privileges; subsequent refusals carry longer suspensions, with an administrative hearing opportunity through the Department of Public Safety and Corrections. Refusal can be a separate offense and enhances OWI sentencing.
Is refusal a separate crime in Louisiana?
Refusal can be a separate offense and enhances OWI sentencing. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
Will the prosecutor tell the jury I refused?
Refusal is admissible in the OWI prosecution and may be argued as consciousness of guilt.
Do I need a warrant for a blood draw?
Breath tests are standard at booking; blood draws are commonly obtained by warrant, especially when drugs are suspected or breath testing is unavailable. See also Birchfield and McNeely linked above.