Test refusals are a major problem for the judicial system in confronting hardcore drunk drivers. Many DWI suspects refuse to cooperate with the police in any way by refusing to answer questions, perform the field sobriety test, or provide a breath sample. As mentioned in the Challenges section, test refusals are more common with hardcore repeat offenders, primarily because they know they’ll test high, they are familiar with the loopholes in DWI laws, and in most jurisdictions, sanctions for refusing to cooperate with police are much less severe than sanctions for a DWI conviction, especially repeat offender sanctions.

When drivers refuse, the police officer cannot gather all of the evidence needed to support an illegal per se charge. All too often, drivers who are drunk and refuse testing avoid a criminal conviction and may not be identified as repeat offenders on a subsequent offense. Test refusal is one way hardcore drunk drivers continue to try to evade prosecution and sentencing. In a 2002 study on DWI prosecutions, three-fourths of the prosecutors interviewed said the blood alcohol test was the single most critical piece of evidence needed for a conviction, evidence they are frequently without (Simpson and Robertson, 2001).

In response to high BAC test refusal rates, a number of states have implemented No Refusal programs to reduce the number of test refusals. No Refusal programs ensure BAC test results by enabling police officers to obtain a search warrant from a judge or magistrate for blood samples of drunk driving suspects. While judges cannot initiate such a program, judicial cooperation with the program is essential to its success.

States that are conducting No Refusal or warrant programs include Arizona, Idaho, Illinois, Kansas, Louisiana, Michigan, Missouri, Texas and Utah. Many other states have the necessary legal authority to conduct No Refusal programs, including Alaska, Alabama, California, Colorado, Georgia, Indiana, Maryland, Michigan, Mississippi, North Carolina, North Dakota, Nebraska, New Jersey, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Washington, Wisconsin, and West Virginia (NHTSA, 2012).  Each jurisdiction is implementing its No Refusal program differently, but the basic idea is outlined below:

After law enforcement officers arrest a DWI suspect who refuses the opportunity to give a breath sample, the prosecutor on site will review the case and may present a warrant to the judge on site. If the judge grants the warrant, it gives the qualified personnel (nurse, law enforcement) authority to draw a blood sample.

In Montgomery County, Texas, the No Refusal Program has reduced the county’s refusal rate from 45 percent to 25 percent. The BAC levels for those who provide samples via the warrant are higher than those who submit to the test without a warrant (.19 percent versus .13 percent). The county’s rate of alcohol-impaired driving fatalities has been reduced by about 70 percent.  Other counties implementing the program report similar results.

Judges should refer to their own constitutions, case law, statutes and ethics rules to determine if No Refusal programs can be conducted locally.