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Many people think, "If you refuse a breath test, there won’t be a number, so isn’t that okay?" However, refusing a breath test is not a simple refusal; it is an independent offense separately punishable under the Road Traffic Act, and in fact may be punished more severely than ordinary drunk driving. Today, we summarize the legal effects of refusing a breath test and how to respond.

[Table of Contents]

1. Refusal of a breath test: why is it a separate offense?

2. Penalty level - why it can be harsher than ordinary drunk driving

3. Cases where refusal after driving ends is still punishable

4. Intoxication proven by CCTV and passenger testimony

5. Response strategy when breath test refusal is suspected

1. Refusal of a breath test: why is it a separate offense?

Article 44(2) of the Road Traffic Act provides that a driver must comply with a police officer’s request for a breath test, and Article 148-2(2) of the same Act separately punishes a driver who refuses to comply with a breath test without justifiable reason. In other words, even if no numerical test result is obtained, the refusal itself is treated as an independent criminal offense.

2. Penalty level - why it can be harsher than ordinary drunk driving

The statutory penalty for refusing a breath test is imprisonment for not less than 1 year and not more than 5 years, or a fine of not less than KRW 5 million and not more than KRW 20 million. This is much heavier than simple drunk driving with a blood alcohol concentration of 0.03% or more but less than 0.08% (imprisonment of up to 1 year or a fine of up to KRW 5 million), and is similar to driving in a highly intoxicated state of 0.2% or higher. Ultimately, the expectation that "if there is no number, it will be lighter" leads to the exact opposite result.

3. Cases where refusal after driving ends is still punishable

Even if the stop begins after driving has ended, if there are circumstances that suggest intoxication at the time of driving (complexion, speech, smell, accident circumstances, time gap from when driving ended, etc.), the offense of refusing the test may still be established. The argument that "since driving has already ended, there is no duty to comply with the test" is unlikely to be accepted.

4. Intoxication proven by CCTV and passenger testimony

Refusing the test does not end the investigation. Investigators combine store and road CCTV, vehicle dashcam footage, card payment records, travel routes, and passenger or witness statements to prove intoxication and driving. Refusal is also evaluated as a negative factor for "failing to cooperate with the investigation," which increases sentencing severity, and depending on the case, it may lead to a detention investigation.

5. Response strategy when breath test refusal is suspected

In many cases, complying with the test at the scene and disputing the result is more advantageous than refusing. If the test was unavoidably delayed, you should secure objective materials showing justifiable reasons (illness, respiratory problems, etc.) in advance; and if the situation has already been recognized as a refusal, you should immediately consult with counsel to organize the direction of statements, mitigation for surrender or confession, and favorable-circumstances materials (family relations, a letter of remorse, a plan to prevent reoffending, etc.).

Cheongchul Law Firm’s criminal defense attorneys from the prosecution and major law firms handle drunk driving and breath-test refusal cases consistently from the initial stage through police investigation accompaniment, submission of written opinions, response to summary and formal trials, and organization of sentencing materials. We minimize harm to clients whose livelihood depends on driving by designing both criminal and administrative tracks together, including responses to driver’s license administrative measures (revocation or suspension), objections, and administrative appeals. If you are suspected of breath test refusal, we recommend getting a consultation before the investigation if possible.

This post is a general guide for providing legal information and does not guarantee the outcome of any specific case. The conclusion may vary depending on individual circumstances, so we recommend consulting with a lawyer.