I only asked for a blood test, so why is it refusal of a breath test?

At checkpoints, some drivers say, “I don't trust the breath test, so take my blood instead.” It was only a request to be measured accurately, made out of a sense of injustice, but by the time they are questioned the charge has become refusal of a sobriety test. This one matter of order makes a bigger difference than you might think.

Why refusal is punished more heavily

A driver who fails to comply with a sobriety test when there are reasonable grounds to believe they are under the influence of alcohol is punishable by imprisonment of one to five years or a fine of 5 million to 20 million won (Article 148-2(2) of the Road Traffic Act). This applies regardless of the actual reading, so you may be punished more heavily than if you had been measured below 0.2 percent. Obstructing a sobriety test, by drinking more after driving in order to make measurement difficult, is punished with the same penalty.

The same goes for your license. If you refuse a test, your license is always revoked, and you are excluded from the reduction available for people who drive to earn a living. The disqualification period is one year in principle, but two years if you caused an accident or if drunk driving and test refusal together add up to two or more times (Article 82(2) of the Road Traffic Act).

A blood test is the step after a breath test

The Road Traffic Act provides that measurement is first made by breath test, and that a driver who disputes the result may be measured again by blood sample with their consent (Article 44(2) and (3)). A blood test is a procedure for disputing the result, so if you skip the breath test altogether and insist on a blood test from the start, there is a risk it will be treated as refusal. However unfair it feels, the proper order is to take the breath test first, state clearly that you do not accept the result, and then ask for a blood test.

Failing to blow properly a few times is not automatically refusal

The Supreme Court regards a failure to comply with a test as a case where it is objectively clear that the driver has no intention of complying. It decides this by looking at the driver's words and conduct at the time, how and in what way the officer requested the test, documents such as the detection report, and the reasons for and length of the refusal as a whole (Supreme Court Decision 2016Do16121, June 8, 2017).

The same decision held that refusing the earlier screening step with an alcohol detector, while knowing that a breathalyzer test was to follow, can also amount to refusal. Do not assume it is fine because the detector is not the formal test. On the other hand, if you were not driving, or if the alcohol was drunk elsewhere well after you had finished driving, you can challenge the very basis for demanding the test.

If lung disease or an injury made it hard to blow enough air, you need to show this with a medical certificate and treatment records. Write down in chronological order how many times you tried, whether the officer explained how to do it, and what was said between each attempt.

Be even more careful if there was an accident

If you cause an accident injuring someone and do not comply with a test request, you can be prosecuted even if you have comprehensive insurance or the victim does not want you punished (Article 3(2) of the Act on Special Cases Concerning the Settlement of Traffic Accidents (교통사고처리 특례법)). Cases where the driver requested or agreed to a blood test are excluded from this exception, so at an accident scene what was said during the testing process is especially important.