Posted on July 2, 2016 by Ryan Smith
This is main question I receive from friends, people at parties, individuals currently being pulled over, and by clients during their initial consultations. This is a two-tiered answer.
Blowing on the side of the road via the Portable Breath Test: This is something you are not legally required to do. Law enforcement will try to pressure you into taking this test so that they have a better idea of where you are from a BAC perspective. If you decline the test, they have to base their decision of “Arrest vs. Not to Arrest” on the other evidence they have obtained. This evidence could be items such as admissions, witness statements, field sobriety tests, etc. Officer will routinely say that they just want to see where you are to make sure you are safe to drive home. The positive of blowing and blowing under the limit is that they may let you go. But if over, they will surely arrest you. If you decline, and have any other evidence against you, you are likely being arrested. My thought is that if you know you’re over the limit, there is little benefit to blowing.
EC/IR II (either at the police station or the BAT Mobile – both being post-arrest): This is where the real decision comes in. If you refuse, the DMV will suspend your license for a year. Then it becomes a case within a case, as lawyers have to manage both the underling criminal case, as well as the Refusal. We like to request for Refusal Hearings so that you aren’t suspended for any longer than required.
But back to the main question: When an officer asks you at the station to blow, and threatens your license being suspended, what do you do?
If having a license means nothing to you (because you both live and work in uptown, and/or never drive), then it may help your case to refuse. This could be less evidence that the State has against you in the criminal case. The problem is that officers could still get a warrant, take you to a local hospital, and draw your blood. But even if this happens, it could buy you 30-60 minutes, which could make all the difference.
If a license means everything to you and getting a DWI won’t get you fired, it may be better to give the breath sample. You may blow way over the limit, and have a 45-day waiting period for a limited driving privilege, but 45 days is better than 1 year.
This is just the beginning of the analysis. Each case has it’s own facts, which changes everything, especially if people have prior charges of DWI. That’s why it pays to have your attorney on speed-dial. When I get the call at 2am, it always helps them make a more informed decision.