“To Blow Or Not To Blow”

Having practiced criminal law for over two decades as both a prosecutor and as a defense attorney, there’s one question I get asked more than any other, “Should I blow?” Solely for those whose minds tend to travel to unusual places, the “blow” I’m referring to concerns the breath machines police use during drunk driving (DUI) criminal investigations.

For purposes of this post, let me first make clear that you should never drink and drive when you’ve either had too many and/or you feel impaired. What I’m not telling you is, “Don’t drink and drive.” I wouldn’t tell you that because that’s not the law. If it was unlawful to drink and drive, bars wouldn’t have parking lots. The message is, “Don’t drink and driveā€¦if you’re impaired.” If there’s even a question as to whether you’re impaired, then your choice should be to avoid getting behind the wheel.

Now, let’s assume you make the choice to drive after consuming some adult beverages. Let’s further assume that Officer Friendly stops your vehicle, has you perform roadside tests, and then strips you of your liberty, believing that you’re impaired. What now? Should you blow into the machine? (Cops and prosecutors call it an “instrument” and not a “machine” because machines (like toaster ovens) make mistakes)

In making your decision, you must understand a few key facts. First, the officer definitely believes you are impaired. That’s why he arrested you. He’s even going to swear to it under the penalties of perjury in the arrest report. Furthermore, regardless of what your breath reading is, he’s not going to un-arrest you. Yes, you read correctly. Even if you blow under the legal limit, Officer Friendly will not give you back your freedom. The protocol in most departments in South Florida and around the U.S. is to then request a urine sample. Most officers believe they can’t be wrong. They couldn’t possibly have made a mistake. You definitely must be impaired, regardless of what that breath reading shows. Therefore, it must be drugs! So, they will request a urine sample from you, which will detect even that hit of the “Devil’s Grass”/”Maui Wowee” you took from the joint three weeks ago at the Coldplay concert.

Another fact is that if you refuse to blow, the Department of Motor Vehicles will suspend your driving privileges for one year or up to 18 months if you’ve refused to blow previously. Additionally, if you’ve refused before, law enforcement can now charge you with an additional criminal offense.

One other aspect to consider is that your failure to blow into the machine can and will be used against you in court during your DUI prosecution. Prosecutors today, still passionately argue what I did when I prosecuted these cases 20+ years ago: “His/her refusal to blow shows consciousness of guilt! He/she knew he/she was impaired and that’s why he/she refused to blow.” That can be very compelling evidence against you. On the other hand, equally, if not even more compelling evidence against you, would be a breath reading showing that you’re over the legal limit.

So what’s the answer? Here it is, “It depends.” If you’ve only had one drink (not the size of a fish bowl), that contains about one shot of alcohol, you should be fine. Two drinks? Maybe, depending on your size and how much you’ve had to eat, and when you drank them. Anything more, I’d be concerned.
While there’s no study that I’m aware of, I believe that drunk driving cases without a reading are won a lot more often than those with a reading over the limit. In the countless DUI cases that I’ve defended over the years, I find that jurors can accept many of the reasons why someone chooses not to blow, other than being impaired. For example, some don’t blow because cops refuse them the opportunity to speak to their lawyers first to determine what they should do. Many of my clients are afraid and don’t trust the breath machines. They simply want some guidance before making the decision. Absent the ability to speak to an attorney, many will choose not to cooperate any further, even if that means the officer will consider their actions a “refusal.”

I have been very successful over the years in challenging the license suspensions that get issued by the Department of Motor Vehicles for failures to blow. The suspension isn’t a definite. There are many ways to successfully challenge that suspension at a hearing conducted at the Department of Motor Vehicles.

In conclusion, “Don’t drink and drive if you’re impaired.” However, if you make that poor choice and you know you are impaired, your chances of prevailing in the criminal arena are greater absent a breath reading showing that you are over the legal limit.

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