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DWI and Breathalyzers: Should You Blow?

You have been out with some friends for a few drinks.  On your way home you get pulled over.  The police officer says you crossed the centerline.  The officer then asks for your drivers license and proof of insurance.  He smells the booze and asks if you have been drinking. You respond "just a few". Everyone always answers "a few".

After a series of fields sobriety tests (you are not legally required to do them), you are placed under arrest for DWI.  You are now headed to the police station.  Upon arrival, you will be asked to submit to a breathalyzer test to determine your blood alcohol content, or B.A.C.

In case you didn’t know, you already agreed to give a sample of your blood, breath or urine.  Wait, what? You don’t remember signing off on that deal?  It doesn’t matter. By simply driving on Missouri’s public roadways, you already consented to a blood, breath or urine test.  Missouri’s Implied Consent law reads as follows…

“Any person who operates a vehicle upon the public roadways of this state…shall be deemed to have given consent…to a chemical test or tests of the person’s breath, blood, saliva, or urine for the purpose of determining the alcohol or drug content of the person’s blood…”

Sneaky, right?  So . . . should you blow?

If you say NO and refuse the test, you could lose your license for a year. You can, however, petition a court to fight the revocation of your license if you refuse.  A judge will then decide the date of your driving privileges.

If you say YES, you provide the police and prosecutors with a B.A.C. result to be used against you in court. A B.A.C. result in excess of the so-called "legal limit" will often seal your fate.

Some other issues to consider:

At the administrative level, a first time DWI will result in a 30-day license suspension followed by a 60-day limited driving privilege permit if your blood alcohol content is .08% or higher.  You can shorten the 30-day suspension to just 15 days if you install an ignition interlock device.  

However, a repeat DWI offense will likely cause a license revocation of one year or more. In addition, the criminal penalties for a second, third, or fourth DWI offense are severe. Considering that the punishment for anything more serious than a first-time DWI could possibly lead to jail or prison, along with a license revocation of more than 1 year, you might feel there is not much to lose by refusing the breath test. 

If you just had a beer or two, you might want to blow if you are confident that your blood level is below .080%. However, if you are drunk, it probably doesn’t matter much whether you blow or not.  Refusing to give a breath sample will deprive the state of a crucial piece of evidence but you can still be successfully prosecuted for DWI. Your refusal can be used against you in court to argue that you were well aware of how drunk you were. Pick your poison.

Another important point to remember in your decision making: Missouri law allows you twenty minutes to contact an attorney. With that 20 minutes, you can try to get legal advice about your particular situation.  At the end of the twenty-minute period, you must take the breath test or the police will call it a refusal and you will lose your license for one year.

If you consider refusing the test, remember this: the police may apply for a search warrant to get your blood to determine your B.A.C. level. In my experience, police and prosecutors do not usually seek search warrants for first-time DWI offenders who refuse. They will break out the search warrants for repeat offenders who refuse the breath test or if there has been an accident with injuries.

As you can see, it’s very hard to know whether taking or refusing the test will hurt or help your case. Getting timely legal advice can make all of the difference. The best advice of all is to never drink and drive.

 Please feel free to contact one of our attorneys if you have any questions or concerns about this topic or any other legal matter. Thanks for reading.

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