The DUI Stop and the Breath Test
AS 28.35.032 — consent to a breath test after a lawful arrest, and refusing is a class A misdemeanor of its own
A person who drives a motor vehicle, or operates an aircraft or a watercraft, in Alaska is considered to have consented to a chemical test of their breath after being lawfully arrested for DUI, or for a minor driving after drinking.
Who handles this in Alaska: Alaska Bar Association Lawyer Referral Service; and legal aid programs and the state offices, listed in the Alaska directory.
Everyone who drives is also considered to have consented to a preliminary breath test, which an officer may give at the scene.
Refusing the chemical test after a DUI arrest is a class A misdemeanor. On conviction the court revokes the license, may order the vehicle forfeited, and runs the jail time after any other sentence rather than at the same time.
A felony refusal. A refusal is a class C felony when the person has two or more earlier convictions since January 1, 1996, and within the 10 years before, or was sentenced for felony DUI or felony refusal in the last 10 years.
Testing is also limited by the Fourth Amendment. The Supreme Court of the United States has held that a breath test may be taken without a warrant as part of a lawful arrest for drunk driving and a blood test may not; that a driver may not be criminally punished for refusing a blood test where no warrant was obtained; and that the natural fall of alcohol in the blood does not by itself create an emergency excusing a warrant in every case, which is decided case by case on all the circumstances. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
Sources for this section (4)
- AS 28.35.031 — Implied consent
- AS 28.35.032 — Refusal to submit to chemical test
- Birchfield v. North Dakota, 579 U.S. 438 (2016) — A breath test may be taken incident to arrest, a blood draw needs a warrant
- Missouri v. McNeely, 569 U.S. 141 (2013) — The natural fall of blood alcohol is not by itself an emergency justifying a warrantless draw
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Alaska attorney.