DWI Breath Test: Exploring the Decision-Making Process and Legal Consequences

Having defended DWIs for nearly a decade and having done more jury trials on these cases than anyone I know, I am asked this question frequently… Should I blow or not blow if I get pulled over? Well, first things first, if you are being asked to blow into a breath test at the station, you’re already arrested, so you are beyond being pulled over. You are now in a situation where what you decide to do has very real and serious consequences. So what should you do? My first response is that you should not blow. If I know nothing else I would tell you to refuse for various reasons that I will elaborate on in the following paragraphs. It’s not that simple though because depending on your situation it may make sense, in limited situations to take the breath test. It pains me to say that because I don’t believe as an American you should ever voluntarily offer evidence against yourself. The limited situations where you should offer evidence against yourself are as follows:

  1. You do not have a prior DWI, DWAI, or DWAI drugs conviction within the past 5 years
  2. You don’t have a prior DWI or DWAI drugs conviction within the past 10 years
  3. You absolutely need some limited driving ability in order to maintain your work
  4. You aren’t completely and totally bombed (very very drunk)
  5. You didn’t hit someone/something and cause an injury or death

If you can’t answer the above 5 questions in the affirmative, then you should not blow. If you can answer yes to those questions, then maybe…maybe you should blow.

I’m a fortunate guy who has the resources to pay for a driver should DMV take my license. Most people probably don’t have that good fortune. So in my situation, I would always refuse unless I had nothing to drink/smoke/etc for a long period of time prior to being asked.

My choice to refuse would be a knowing choice. I know that most of the time (probably 90% of the time)  I will lose my license while the case is pending, based on my refusal alone. I know this sounds like the most un-American, anti 5th amendment bunch of nonsense you’ve ever heard of, but the courts have determined that driving is a privilege and not a right. This is a terrible determination that was decided by judges that don’t have to worry about cops messing with them and don’t understand that driving is a necessity for anyone who doesn’t live in Manhattan. It’s not changing though so we should play within the rules that these judges have set.

So Why Shouldn’t You Blow Most Of The Time?

Simple, you most likely have done something to spark the cop’s interest. Maybe you had a couple pops after work, maybe you smoked a jay at your buddy’s apartment before driving home, maybe you had two cocktails after work and a couple lines in the bathroom. I’m not judging, I’m just saying that most of the time my clients have imbibed in one form or another.

What I don’t like is a client that offers evidence that helps convict them.

This process starts from the moment you pull over. My overall advice is..


I mean that, but most people don’t have the courage to do that. Roll down your window, be polite and ask for an attorney.  Then shut up. You don’t have to do the field sobriety tests, you don’t have to answer questions, you don’t have to say where you are going and where you are coming from, and you most certainly don’t have to blow into any device that the police ask you to blow into.

Again, I’m saying be polite, it’s helpful. It’s even more helpful to do nothing. Ask for a lawyer then shut up.

Most people think that they are going to fool the cops and that they don’t want to be uncooperative.

Let me be very clear, the cops have a job of gathering evidence against you. You have a job to shut up and not help them with their job. You’re an American, your uncles George Washington, Benjamin Franklin, and John Adams all agree with me.

So like Kunu said in Forgetting Sarah Marshall, “do less.”

This isn’t about the field sobriety tests though because you’ve already done those (which you shouldn’t have, ever) and you failed them, and you told them you had a couple of drinks, and you’re just driving home. That’s why you’re sitting in the police station and they are asking you to give them a breath test. You’ve been nice, you’ve been cooperative, you are being respectful, yet you’re still sitting on a bench, handcuffed to a wall wishing you didn’t have to make this decision before calling your mom/wife/husband/boyfriend/etc for a ride home.

So why would you continue cooperating? You’re just a good guy/gal who wants to give a bunch of evidence against themselves and limit your attorney’s options in defending you. Stop, don’t take the test. We can explain later after you’ve talked to an attorney.

Remember my advice from above, shut up, don’t say yes or no, just don’t do it. Sit there quietly and use your rights. You have a right to remain silent, use it. If you must say something say that you want to speak with an attorney and you want to talk to them about the breath test. Try not to slur it though on the off chance you’re on camera.

But won’t it look bad? Won’t I look guilty, you might ask?

Yes, you already look guilty, you’re sitting in the police station with a trained officer stating that he thinks you’re drunk, wearing metal bracelets that are connected to each other. Don’t make yourself look more guilty.

By not blowing into their machine, you are already helping yourself and your lawyer, assuming he or she is not some half-rate chump (there are a lot of half-rate chumps but that is a later conversation/blog). By refusing to blow you are taking one whole charge off the table. You can’t be charged with being above a .08 and you most importantly can’t be charged with being above a .18. Arbitrary numbers but important numbers none the less.

The only thing you can be charged with is being intoxicated by observations. A good attorney can deal with that and can almost certainly beat that charge. The less you do the better your chances.

If you ever had to fight your case all the way to a trial in front of the jury, the jury is going to be looking for a number that they are never going to get. Prosecutors don’t know how to sell these cases properly and a good defense attorney (me) should have a field day with a case like this. If it weren’t for the severe consequences you are facing, it could almost be fun.

I could go on for another five pages about why I don’t think you should blow. To be fair you will suffer some license consequences most likely, which sucks. When it comes to the criminal charge of DWI though, you should do as little as possible, talk less than you want to, and if you are going to do anything just ask for an attorney.

If you are reading this and you’ve already been arrested, fortunately for you, I can handle anything you’ve already done. We can figure it out and put you in the best possible position.

Contact our DWI Defense Attorneys at O’Brien & Eggleston PLLC today by calling 518-391-2369 or contacting us online to schedule your initial appointment.

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