Refusal to Consent to Testing

Under Utah's implied consent law, when you drive a vehicle in the State of Utah, it is implied that you will submit to a chemical test of your breath, blood, or urine to determine the alcohol or drug content if lawfully asked to do so by a peace officer.

The results of chemical test help determine whether an individual has been driving or in actual physical control of a vehicle while under the influence of alcohol, drugs, or both. If an officer arrests you for driving while in such a condition, you must submit to the chemical tests selected or designated by the officer.

If the officer asked you to take any chemical test, Utah law does not necessarily allow you to choose which tests you will take or consult with an attorney or doctor before agreeing to take such tests. In many cases, the defense will show that the officer did not properly read Utah's implied consent warning or that no refusal actually occurred.

If you are accused of refusing to submit to testing, you will face an "on-the-stop" administrative suspension and a possible court-ordered suspension if you are convicted of DUI in court.

Attorney for DUI Refusal Cases in Salt Lake City, Utah

If you were arrested for driving under the influence (DUI) and the officer alleged that you refused to submit to a chemical test of your breath, blood or urine, then contact an experienced drunk driving defense attorney at Brown, Bradshaw & Moffat, LLP.

Our attorneys are experienced in fighting a wide variety of DUI cases including cases involving a breath test, blood test, urine test, or the refusal to submit to chemical testing.

Let us put our experience to work for you. Call (801) 532-5297 today for a free consultation to discuss your case.


Overview of Testing Refusal in Utah


Back to top

Utah's Implied Consent Statute 

If you drive a motor vehicle or operate a motorboat in Utah, it is implied that you will submit to a chemical test of your breath, blood, urine, or oral fluids to determine the alcohol or drug content, if asked to do so by a peace officer. In Utah, this presumption is called the implied consent law as explained in Utah Code Ann. § 41–6a–520(1)(a).

As required by § 41–6a–520(2)(a), the peace officer requesting a test must warn a person that a refusal to submit to the test or tests may result in revocation of the person's license to operate a motor vehicle ... if the person:

(i) has been placed under arrest;

(ii) has then been requested ... to submit to any one or more ... chemical tests ...; and

(iii) refuses to submit to any chemical test requested.

If, after receiving the warning, “the person does not immediately request that the chemical test or tests offered by a peace officer be administered, a peace officer shall, on behalf of the Driver License Division ... give notice of the ... Division's intention to revoke the person's privilege or license to operate a motor vehicle.” Id. § 41–6a–520(2)(b).

Utah uses the results of chemical tests to determine whether the driver of a motor vehicle or operator of a boat is under the influence of alcohol, drugs, or both. After an arrest for driving while under the influence, the driver will be asked to submit to the chemical tests selected or designated by the officer.

Under Utah law, after being asked to submit, the driver is not permitted to:

  • chose which test to take; or
  • consult with an attorney or doctor before agreeing to take such tests.

Consequences of Refusing DUI Chemical Testing

The consequences of refusing to submit to a breath, blood or urine test include: 

  • an administrative or "on-the-spot" suspension; and
  • evidence of the refusal being used against you in court in the trial for the DUI charge.

A refusal to submit might trigger a license revocation for 18 months for a first offense and 36 months for second or subsequent offenses.


Back to top

Length of the Administrative Suspension for DUI Refusal

The length of the administrative suspension depends on several factors including whether you have previously refused to submit to a chemical test and whether you are over 21 years of age.

  • If you refuse to do so, your license will be revoked for 18 months for a first offense; or 36 months for second or subsequent offenses.

If the driver is under the age of 21, the license will be revoked for either:

  • two (2) years for a first offense; or
  • 36 months for a second offense; or
  • until the driver reaches the age of 21, whichever is longer.

Back to top

Contesting the Administrative Revocation for a DUI Refusal

If, after receiving the Utah implied consent warning, “the person does not immediately request that the chemical test or tests offered by a peace officer be administered, a peace officer shall, on behalf of the Driver License Division ... give notice of the ... Division's intention to revoke the person's privilege or license to operate a motor vehicle.” Id. § 41–6a–520(2)(b).

Your criminal defense attorney can help show disputed factual issues concerning whether the DUI enforcement officer gave the proper admonitions required by statute and, if so, whether the driver actually refused to consent to the requested chemical tests.


Back to top

Hearings with the Utah Driver License Division

The Utah Driver License Division (the Division) can suspend a person’s driver license. In some cases, the district court can set aside the suspensions during a de novo trial.

If you were arrest for driving a motor vehicle under the influence of alcohol in violation of Utah Code section 41–6a–502, then the Division will hold a formal or informal suspension hearing as provided in § 53–3–223(6).

In the hearings, the driver’s criminal defense attorney is permitted to cross-examine the arresting officer. If the hearing officer does not invalidate the suspension, the licensee can ask the district court to review the license suspension as provided in § 53–3–224(1).

The driver can move for declaratory judgment on a variety of grounds including when a due process violation occurs because the Division did not follow the rules on how to conduct the hearings at the informal administrative hearings. 


Back to top

Review of Informal Administrative Adjudications in DUI Cases

Under Utah Code section 63G–4–402, the district court can review the informal adjudicative proceedings on the record rather than by conducting trials de novo.

For the purposes of the trial de novo, the main issue is often whether the driver refused to take the requested chemical test after being given a fair explanation of Utah's implied consent law as required by Utah Code Ann. § 41–6a–520.

The Utah Administrative Procedures Act (UAPA) governs the judicial review of administrative agency decisions. Section 63G–4–402(1)(a) of UAPA sets forth the scope of a district court's authority to review informal administrative adjudications.

When interpreting Utah Code Ann. § 63G–4–402(1)(a), the Utah Supreme Court has found:

“This section requires that the district court's review of informal adjudicative proceedings be performed by holding a new trial rather than by reviewing the informal record.”

Archer v. Board of State Lands & Forestry, 907 P.2d 1142, 1144 (Utah 1995) (citing Cordova v. Blackstock, 861 P.2d 449, 451 (Utah Ct.App.1993)).

In other words, the district court does not have the discretion to review an informal adjudicative proceeding by any method other than a trial de novo as required by the UAPA.

The trial de novo limits the district court’s ability to supervise or review the behavior or conduct of the Division and its hearing officers when they violate many of the basic procedural safeguards. 


Back to top

Appeal After the Trial De Novo Affirming the Revocation

The driver can appeal the district court's decision following a trial de novo affirming the administrative revocation of his driver license.

On appeal, the review of a trial de novo on a driver license suspension is deferential to the trial court's review of the evidence unless the trial court has misapplied principles of law or its findings are clearly against the weight of the evidence. See Lopez v. Schwendiman, 720 P.2d 778, 780 (Utah 1986).

The appellate court will not disturb the ruling when there is substantial evidence that the driver failed to respond to the officer or to take the test amounts to a refusal.

The appellate court’s review of a trial de novo on a driver license suspension is deferential to the trial court's view of the evidence unless the trial court has misapplied principles of law or its findings are clearly against the weight of the evidence.

“The question of whether or not a motorist was confused and manifested his confusion to the arresting officer is for the trier of fact to determine, as is the question of whether the officer sufficiently explained the obligation to be tested pursuant to the implied consent law.” Holman v. Cox, 598 P.2d 1331, 1334 (Utah 1979).

In Pledger v. Cox, 626 P.2d 415, 417 (Utah 1981), the Utah Supreme Court concluded that the trial de novo on an driver license revocation is a complete retrial.

The Utah Supreme Court adopted an objective test in Holman v. Cox, 598 P.2d 1331, 1333 (Utah 1979), stating,

Obviously, the arresting officer cannot know the subjective state of mind of the person arrested and whether he, in fact, intended his response to a request to take a blood test to be the equivalent of a refusal that would result in license revocation.

The test must be objective; otherwise, the whole statutory scheme could be subverted by one who equivocates or remains silent, and later protests that it was his unexpressed intent to take the test.

However, the behavior of the driver must clearly indicate, judged objectively, that the driver intended to refuse to take the test.

Id. at 1333.


Back to top

Paying the Reinstatement Fee for a DUI Administrative Suspension

Any time your license is suspended/revoked for an alcohol-related offense, you may apply for a new license after the suspension/revocation period by paying a $65 reinstatement fee and the regular license fee and by taking the required examinations.

An additional $230 administration fee may be required in some cases. If a driver does not do everything the court orders, the court will notify the Driver License Division, which will suspend the driver license until the driver has done all that the court ordered.


Back to top

Client Testimonials

View More Testimonials