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I’m stopped for a DWI. Do I blow into the breathalyzer?

19 Apr

Let’s pretend it’s a clear starry Saturday morning, 1:00 a.m and the cop lights me up and pulls me over. He says I crossed the centerline. I did?

He asks for license and insurance and smells what he will describe in his report as an “odor of intoxicants” emanating from me.

It’s all downhill from there: the one-legged stand test, the walk-and-turn, the gaze test. Then come the handcuffs and a ride in the back seat to the sheriff’s office, where the cop reads some stuff from some form. He says:

  • “You are under arrest for driving while intoxicated.”
  • “To determine the alcohol content of your blood, I am requesting you submit to a chemical test of your breath (or maybe blood). If you refuse to take the test, your driver license will immediately be revoked for one year.”
  • “Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?

So . . . should I blow?

If I say NO, I lose my license for a year.

If I say YES, I provide additional evidence to be used against me in court.

There are some other things I should think about:

A first offense DWI may result in a 30/90 day license suspension, but a repeat offense (or one involving injury or death) will likely cause a license revocation of a year or more. Considering that the punishment for anything more serious than a first offense DWI is probably jail or prison, and a year or more revocation, I might feel there is not much to lose by refusing the breathe test. So I think to myself . . .

  • Now if I just had a beer or two, I might want to blow if am confident that my blood level is below .080%. It would prove me innocent.
  • But in a close case it could be just enough for the state to make the case against me.
  • If I am really drunk, however, it probably doesn’t much matter whether I blow or not. They’ve got me good and nothing will change it. Most prosecutors will just argue that I was so drunk that I knew the breath test would convict me. They would be right and the jury would probably agree with them.

Now there is one thing the police won’t tell me: the law gives me twenty minutes in which to try to contact an attorney. At the end of the twenty minutes, I must take the breath test or lose my license for the year.

So with that additional 20 minutes I can try to get some advice. If I can’t reach a lawyer, I still have 20 more minutes to think about taking the test. Of course, after a few beers, my thinking is not as good as it could be, but on the bright side, 20 minutes is long enough to lower my blood alcohol from .084% to .079%. That might help.

One final thing to consider is that–if I refuse to blow–the police may to wake up a prosecutor and a judge to get a search warrant, so they get the blood sample anyway. Or they just take the blood without consent or a warrant and hope it holds up in court. If that happens I am triple screwed.

  1. I refused to blow, so I lose my license for a year,
  2. I look guiltier because I tried to hide my alcohol level; and
  3. They got the blood alcohol evidence anyway. (Sure didn’t see that one coming, Ouch!)

As you can see, it’s very hard to know whether taking or refusing the test will hurt or help your case. Sometimes you won’t know until it’s too late.

If you can reach an attorney during your twenty minutes (good luck on that), he or she can help you decide. Don’t rely on this post because it is too short to address all the issues involved. If you want to call me, my number is in the book. Or just avoid the whole thing and have somebody else drive you home.

PS: Some folks will try anything:

 

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Leave a Reply

 

 
  1. Maureen

    April 21, 2008 at 8:26 am

    How about not doing the one-legged stand and walk and turn which are all test subjectively graded by the arresting officer and you can’t get your license suspended if you refuse these.

     
  2. england

    April 21, 2008 at 9:14 am

    One of these days I”ll cover that in another post, (i.e., the scorched earth strategy). If done right, it can work. Few people can handle it, however, and it is almost never done right.

    My experience is that only highly intoxicated people have the presence of mind to use it. Then, only with a lot of swearing, struggling and additional charges being filed for resisting arrest and assault of a law enforcement officer.

     
  3. Missouri Criminal Defense Lawyer » Blog Archive » Thomas Aquinas on the criminal law

    July 22, 2008 at 10:48 pm

    [...] Getting tough on crime: Steal a wire, go to prison. [...]

     
  4. Houston DWI Lawyer

    November 2, 2008 at 6:10 pm

    I love that newspaper headline – that is great!

     
  5. Wondering

    November 26, 2009 at 11:18 pm

    If someone has never gotten a DWI ever before, shouldn’t one just blow? This way, you dont lose your license for a year.

    But, If one has a previous DWI within 5 years, shouldn’t you just refuse to blow because you are going to be charged with a felony anyway. At least by refusing to blow, they have to get the warrant and blood test and the results should be more accurate?
    What do you think?