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:

Can I get a ten year old Missouri DWI erased from my record?

expungeIt’s called an expungement, and in Missouri, any qualified person can get one (but only one).

If you have a single DWI or other misdemeanor alcohol related driving offense that is ten years old, the law provides a way for most people to make that mistake disappear forever. The effect of an expungement order is to restore you to your status prior to your DWI arrest, plea or conviction–as if such event had never taken place.

Expungement requires filing a petition with the court in which you originally pled guilty or were convicted. After a criminal background check, you must prove–-in a hearing–that you have not been convicted of any alcohol-related driving offense in the prior ten years and have have no alcohol-related enforcement contacts (like a license revocation) during the preceding ten years, nor have any alcohol-related driving charges or alcohol-related enforcement actions pending. The court will then order expungement of all official records of your arrest, plea, trial, conviction and related administrative actions.

In addition to the expungement of the records, you cannot later be found guilty of perjury or otherwise giving a false statement for failure to admit to the expunged arrest, plea, trial or conviction (no matter who asks or why).

 

Child Endangerment & DWI: Double Jeopardy?

DWISection 568.050 makes it a separate crime (child endangerment) to commit a DWI with a child in the car. The new Senate Bill 216 would also add driving with any level of controlled substance (or its metabolite) in the body to create a new way to commit child endangerment. Both of these ways to commit child endangerment create a problem when combined with a DWI.

Police & prosecutors are known to file DWI charges AND Child endangerment charges together for the same incident, if there is a child in the car. But that’s an illegal double-dip. I can’t see this practice continuing very long before the court of appeals overturns a conviction (that is, if there isn’t one in the works right now!).

Simply, a conviction on both charges together would amount to double jeopardy.The reason is that DWI is a lesser included offense of the Child Endangerment charge; i.e., the elements of the DWI charge are contained totally within the Child Endangerment charge. That’s a big no-no which smart defense attorneys will prevent and ethical prosecutors will not file in the first place.

All things considered, I’d say Missouri’s DWI Child endangerment law is pretty useless. If prosecutors can’t file Child Endangerment along with the DWI charge, then they must choose between the two. In that case they will certainly choose the DWI charge because the punishment ends up being worse for the defendant. With a DWI, he not only has criminal punishment, but he must deal with:

  • points on his driver’s license
  • increased punishment for repeat offenses
  • conviction can be later used to charge a higher level DWI
  • odd stuff like insurance rate increases, job loss, etc.

If the legislature wants to make DWI child endangerment stick they will have to make it a type of aggravated DWI with ALL the DWI penalties and consequences PLUS something more for having Junior along for the ride.