Refusing a Breathalyzer Test in the Army

January 4, 2025

Refusing a breathalyzer test in the Army is considered a violation of a lawful order, in accordance with AR 600-85, paragraph 10-12c. These situations almost always arise when a Soldier is pulled over while driving, by MPs or Civilian Law Enforcement, and fails a sobriety test (which are designed to fail). The MP or Civilian Cop then offers a breathalyzer test and the Solider in question is given the option to provide a sample (blow into the breathalyzer) or refuse the test. Refusing a breathalyzer test in the Army will likely result in a suspension of the Soldier's license, the arrest of the Soldier for driving while intoxicated, and criminal charges (either in Federal Magistrate Court on Post or in Civilian Court). Additionally, while not required, any Soldier who refuses a breathalyzer almost always will be issued a GOMOR. After consideration of a rebuttal, if the GOMOR is filed in the Soldier's AMHRR, enlisted Soldiers could face separation from the Army either from their local Command or through the Army QMP Process. Officers may face the initiation of elimination, either from the show cause authority (immediately) or from HRC (later on) while getting looked at for promotion to the next higher rank.

Soldiers often wonder if refusing a breathalyzer test in the Army is a good idea. This is a tough question to answer. On the one hand, a Soldier will be essentially exonerated if he/she tests under the legal limit. On the other hand, if he/she tests over the legal limit, it is better to refuse the test to prevent having to argue against a BAC reading over .08; chains of command have a hard to believing that a BAC reading is inaccurate. Whether or not to refuse a BAC test is a judgment call that has to be made in the moment.

Any Soldier who is arrested for refusing a breathalyzer test in the Army should first understand his/her reporting obligations to the chain of command and to their security manager, if applicable. Soldiers often misunderstand their requirements to report and incriminate themselves unnecessarily.

Any Soldier refusing a breathalyzer test in the Army who is arrested or receives any adverse action, such as a GOMOR, should immediately consult an experienced military lawyer. A good rebuttal to the issuance of any adverse action can result in the Soldier being exonerated. While TDS/Legal Assistance is available, they are often overworked, inexperienced, and unwilling to give the Soldier in question the time and attention needed to fight back effectively. Soldiers facing adverse action for refusing a breathalyzer test in the Army can hire a civilian defense counsel who is more experienced, available, and willing to assist.

This Article was written by Attorney Matthew Barry. Attorney Barry is highly rated by former clients and has a proven track record of success.

The Law Office of Matthew Barry represents Soldiers worldwide. He has offices on the East Coast, West Coast, and in the Central U.S. Attorney Barry and his team will travel to any base, worldwide, to represent Soldiers accused of misconduct.