Missouri bill would criminalize refusal to take breath test

People often hear that they should refuse to take the breath test if they are arrested for a DWI. Unfortunately–in the case of a simple first offense DWI–that belief will frequently result in worse results than if a person is convicted of the DWI. Refusal to blow will probably result in a one year revocation of that person’s Missouri drivers license.

A bill in the Missouri legislature takes a “refusal” to blow to a new level. SB 780, sponsored by Sen Matt Bartle, makes refusing to submit to chemical testing a separate crime, equivalent to a first-time DWI

In view of the heavy administrative penalty (one year revocation) already on the books, I am not certain how useful this provision will be. It creates a bizarre situation with regard to other statutes that still remain in effect. Section 577.041 requires the arresting officer to allow a DWI suspect twenty minutes in which to contact an attorney about whether to take the breath test.

It seems odd to specifically provide extra time for a suspect to call a lawyer to ask if he should commit a crime. This places the attorney in a situation of having to violate ethical rules if he makes any specific recommendation. I can imagine getting a phone call at 3:00 am:

Me: What can I do for you?

Suspect: I’m at the police station and I want to know if I should take the breath test? I got arrested for DWI.

Me: You are asking me if you should commit another crime?

Suspect: The cop said I could call a lawyer to see if I should blow.

Me: OK, here’s the deal. I can’t advise you to commit a crime. I could advise you to obey the law and take the test, but I can’t do do that either, because it could make your situation worse. However–wink, wink–If you do take the test, X will happen. If you don’t, Y will happen. Good luck.

This bill is hardly necessary, and–as the above shows–creates difficulties within the existing law.  It needs to fail.


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

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: