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Should I Blow Or Not If I'm Stopped For DWI?

As a lawyer, this is a question I get asked time and time again from friends, family members, and clients alike. My answer is, invariably, the number one answer from law school . . . It Depends! Lol. (Can I use lol in a blog post?)


Let's start with what happens if a driver refuses to submit to a chemical test on a First Offense DWI. For starters, the driver is going to jail for a few hours at least, and the DMV will suspend that person's license for one year. I am going to assume that if the person refuses the breathalyzer, they are going to go all out and refuse to take the field sobriety test as well. There is no penalty for refusing to do a field sobriety test. So, my potential client has provided the police and prosecutors with as little evidence as possible.


But there are two problems: 1. The police report, and 2. The body cam. If the police officer reports: "I observed the driver swerving within the lane of travel, driving erratically and running a red light. When the driver exited the vehicle, they were stumbling, incoherent, and had slurred speech, the driver's eyes were bloodshot red and a strong smell of alcohol emitted from their breath."


Furthermore, if the body cam footage backs up those statements made by the police officer, then it will be an uphill battle to get a favorable outcome. Nevertheless, a favorable outcome is still possible, and the client receives diversion. The client has to do community service, AA meetings and pay fines, etc. but, there is no additional suspension time, just the original 1-year suspension time from the DMV.


The result is the client does not have a DWI on their record, and the client served a 1-year suspension after refusing to blow.


The same client from above submits to a chemical test and fails because their blood alcohol content (BAC) is over the legal limit of .08. In this instance, all the facts are the same as above, except the client decided to take the breathalyzer and their BAC is .102. The client is still going to jail for a few hours; however, the difference is their suspension will only be 90 days as a result of failing the breathalyzer as opposed to refusing to take it. All facts are the same as the above client gets diversion.


The result is the client does not have a DWI on their record, and they served a 90-day suspension after failing the breathalyzer with a BAC of .102.


The same client from above submits to a chemical test and fails because their blood alcohol content (BAC) is over the legal limit of .08. In this instance, all the facts are the same as above, except the client decided to take the breathalyzer and their BAC is .202. The client is still going to jail for a few hours, possibly more and their suspension from the DMV will now be 2 years. In this instance, they are not likely to get diversion. If the client is found guilty of First Offense DWI with a BAC of .202 (absolute worst case scenario), the client will spend at least 48 hours in jail, and the client's license shall be suspended for 2 years from the date of the conviction.


The result is the client has a DWI on their record for at least 6 months after the completion of the case, and the client's license is suspended for over 2 years from the date of arrest as a result of failing the breathalyzer with a BAC of .202.


As you can see, it depends. On the internet, you can find calculators that estimate your BAC based on weight, gender, and amount of alcohol consumed in a specific period. However, it is only an estimate and is not 100% accurate. So the only safe answer is not to drink and drive!



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