Mississippi lawEvidence

What Happens If I Refuse a Breathalyzer Test in Mississippi?

September 22, 2026 · LawDiver Research Team

A first refusal typically results in a 90-day administrative license suspension; subsequent refusals carry longer suspensions, with a right to an administrative hearing through the Department of Public Safety. Refusal can enhance criminal DUI penalties. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant. That is what separates Mississippi refusing a breathalyzer from a generic national summary. Read Miss. Code Ann. § 63-11-5 before the background sections below. Mississippi drivers consent to breath, blood, or urine testing when arrested for DUI. Officers must inform the driver of the consequences of refusal under the implied-consent law in title 63.

License suspension and administrative hearings

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 can enhance criminal DUI penalties. 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. Mississippi statutes and case law implement those federal baselines with local detail.

Can refusal be used as evidence?

Refusal is admissible in the DUI 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 Mississippi opinions for “refusal” and “implied consent.”

A concrete Mississippi scenario

Here is one way the Mississippi pieces fit together. Change any fact and the statute may point somewhere else.

A driver is arrested for DUI in Mississippi and refuses the evidentiary chemical test after the implied-consent advisory.

Identify the administrative consequence under Miss. Code Ann. § 63-11-5: A first refusal typically results in a 90-day administrative license suspension; subsequent refusals carry longer suspensions, with a right to an administrative hearing through the Department of Public Safety.
Separate that track from the criminal case: Refusal can enhance criminal DUI penalties. 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 DUI prosecution.
If the request is for blood rather than breath, apply the warrant rule: Breath testing is standard; blood may be taken with consent, a warrant, or under crash-related statutory authority.

In Mississippi the refusal question is answered first by Miss. Code Ann. § 63-11-5, then by the administrative deadline and the criminal case.

Breath tests versus blood tests

Breath testing is standard; blood may be taken with consent, a warrant, or under crash-related statutory authority.

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 Mississippi opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.

Price v. State

Price v. State, 752 So. 2d 1070 (1999)

…IED A FAIR TRIAL BY JURY BECAUSE THE JURY WAS INSTRUCTED ON IMPLIED CONSENT, THE DEFENDANT DID NOT TESTIFY AND HIS SILENCE WAS THE SUBJECT OF INSINUATION AT CLOSING ARGUMENT BY THE STATE. III. WHETHER THE COURT MADE IMPROPER COMMENT AND EMPHASIS ON THE EVIDENCE OF REFUSAL TO TAKE THE INTOXILYZER WHEN IT GAVE AN INSTRUCTION ON THE IMPLIED CONSENT LAW. IV. WHETHER TESTIMONY ELICI…

On implied consent / breathalyzer refusal, Price v. State speaks to the Mississippi dispute in this passage: "IED A FAIR TRIAL BY JURY BECAUSE THE JURY WAS INSTRUCTED ON IMPLIED CONSENT, THE DEFENDANT DID NOT TESTIFY AND HIS SILENCE WAS THE SUBJECT OF INSINUATION AT CLOSING ARGUMENT BY THE STATE. III." The surrounding opinion shows how the court applied that language to the record.

Ricks v. State

Ricks v. State, 611 So. 2d 212 (1992)

…xplaining how the test worked, the nature of Pennsylvania's implied consent law, and the legal consequences of refusal. The defendant then asked the officer several questions about the test and the consequences of refusal, during which the defendant commented upon his state of inebriation. After offering to take the test after waiting a couple of hours or drinking some water, t…

On implied consent / breathalyzer refusal, Ricks v. State speaks to the Mississippi dispute in this passage: "Pennsylvania's implied consent law, and the legal consequences of refusal. The defendant then asked the officer several questions about the test and the consequences of refusal, during which the defendant commented upon his state of inebriation." The surrounding opinion shows how the court applied that language to the record.

Sheppard v. Miss. State Highway Patrol

Sheppard v. Miss. State Highway Patrol, 693 So. 2d 1326 (1997)

…ustice, for the Court: This case compels us to construe our implied consent law under D.U.I. refusal. The issues presented are whether the defendant has the right to a trial de novo in a suspension hearing for D.U.I. refusal; whether proper procedures were used in suspending the appellant's drivers' license; and whether the "confusion doctrine" applies to D.U.I. refusals in thi…

Sheppard v. Miss. State Highway Patrol is worth reading on Mississippi implied consent / breathalyzer refusal because the court put the point in its own words: "Court: This case compels us to construe our implied consent law under D.U.I. refusal. The issues presented are whether the defendant has the right to a trial de novo in a suspension hearing for D.U.I." Use that passage as the starting point, then read the facts that precede it.

Cutchens v. State

Cutchens v. State, 310 So. 2d 273 (1975)

…analysis of a person's breath. The tests authorized by the Implied Consent Law are not exclusive because Mississippi Code Annotated section 63-11-39(2) (1972) provides: No provisions of this chapter shall be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the person was under the influence of intoxicating liquor.…

Cutchens v. State is worth reading on Mississippi implied consent / breathalyzer refusal because the court put the point in its own words: "Mississippi Code Annotated section 63-11-39(2) (1972) provides: No provisions of this chapter shall be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the person was under the influence of intoxicating liquor." Use that passage as the starting point, then read the facts that precede it.

Ashcraft v. City of Richland

Ashcraft v. City of Richland, 1993 Miss. LEXIS 257 (1993)

…nse on April 30, 1989, Miss. Code Ann. § 63-11-30(1) of our Implied Consent Law read as follows: (1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person's ability to operate a motor vehicle; or (c) has ten on…

Practitioners open Ashcraft v. City of Richland when Mississippi implied consent / breathalyzer refusal turns on the distinction in this sentence: "nse on April 30, 1989, Miss. Code Ann. § 63-11-30(1) of our Implied Consent Law read as follows: (1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any ot" Do not lift it out of the facts the court was deciding.

Ewing v. State

Ewing v. State, 300 So. 2d 916 (1974)

…ng officer to inform the appellant of the provisions of the Implied Consent Law. The substance of the evidence is that the automobile of James Palmer, an off-duty policeman, was forced from the public highway by the erratic driving of another. Palmer alerted the highway patrol and pursued the other automobile along the highway. During this time he observed three other vehicles…

Mississippi opinions such as Ewing v. State are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Implied Consent Law. The substance of the evidence is that the automobile of James Palmer, an off-duty policeman, was forced from the public highway by the erratic driving of another. Palmer alerted the highway patrol and pursued the other automobile along the highway." That is the language to brief; the rest of the decision supplies the procedural posture.

Smith v. State

Smith v. State, 942 So. 2d 308 (2006)

…med Smith of his Miranda rights and explained Mississippi's implied consent law. Bean offered Smith the Intoxilyzer 5000 breath test, once at approximately 9:58 p.m. and again approximately one-half hour later. Smith refused to submit to either test. The jailer then began recording Smith's personal information into the computer, taking fingerprints, and conducting other matters…

On implied consent / breathalyzer refusal, Smith v. State speaks to the Mississippi dispute in this passage: "Smith of his Miranda rights and explained Mississippi's implied consent law. Bean offered Smith the Intoxilyzer 5000 breath test, once at approximately 9:58 p.m. and again approximately one-half hour later. Smith refused to submit to either test." The surrounding opinion shows how the court applied that language to the record.

Fulton v. City of Starkville

Fulton v. City of Starkville, 1994 Miss. LEXIS 533 (1994)

…xilyzer test as a "chemical test" in interpreting Montana's implied consent statute. This case involved questions concerning the Intoxilyzer Model 5000, one of the same type machines authorized by the Mississippi Crime Lab for detection of blood alcohol content in accordance with 63-11-5 and 63-11-30 of the Miss. Code Ann. (1972). The Montana statute is very similar to Mississi…

On implied consent / breathalyzer refusal, Fulton v. City of Starkville speaks to the Mississippi dispute in this passage: "Montana's implied consent statute. This case involved questions concerning the Intoxilyzer Model 5000, one of the same type machines authorized by the Mississippi Crime Lab for detection of blood alcohol content in accordance with 63-11-5 and 63-11-30 of the Miss. Code Ann. (1972)." The surrounding opinion shows how the court applied that language to the record.

Key takeaways

Primary authority: Miss. Code Ann. § 63-11-5.
Administrative hit: A first refusal typically results in a 90-day administrative license suspension; subsequent refusals carry longer suspensions, with a right to an administrative hearing through the Department of Public Safety.
Criminal exposure: Refusal can enhance criminal DUI penalties.
Evidence: Refusal is admissible in the DUI prosecution.
Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.

Mississippi drivers consent to breath, blood, or urine testing when arrested for DUI. Officers must inform the driver of the consequences of refusal under the implied-consent law in title 63.

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 Mississippi appellate opinions.

Frequently asked questions

What happens if I refuse a breathalyzer in Mississippi?

Is refusal a separate crime in Mississippi?