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will you lose your drivers license for failing to take the breath test no and yes hi Im northern virginia criminal defense attorneys Scott Nolan and Im here to talk to you about the - breath tests so the single most common comment I get but I have to respond to four or five times every day is hey if we follow your advice and we dont take the breathalyzer were definitely going to lose our license right no no look there are two different breath devices the breathalyzer is a small handheld device about the size of a wallet that the police use at the roadside they carry it in their police cars they give it to you to breathe in its the one youre used to seeing on television and in movies refusing that is not a violation of the law it is not mandatory you are protected by your First Amendment right to remain silent that is you dont have to provide the police with any evidence so you dont have to blow into that device its in the law the theory is that its actually for your benefit