In a comment to this post, in which I mentioned that I thought the ±25% margin of error of the Intoxilyzer 5000 was a good reason not to blow if you’re arrested for DWI, first-time commenter Scott wrote:
Your comment regarding refusing to blow intrigues me, as a green attorney, given the likely loss of driving privileges for one year or more (depending on the state). Do you hang your hat on being able to then beat the administrative process or is it a “trade-off”? (“Client, you may not be able to drive for a year, but at least you didn’t get a DUI!”).
I’m only talking about Texas here; the calculus may be different in other states.
In Texas, the administrative license suspension for refusing to blow is 180 days. We frequently beat the ALR suspension. If we don’t, an occupational license is available.
The administrative license suspension for blowing and failing is 90 days. But a failed breathalyzer gives the government a lot more leverage at trial. And in Texas a first DWI is a criminal offense that’ll significantly restrict your liberty, give you a lifelong criminal record, and cost you a whole lot of money (H/T Austin DWI defense lawyer Ken Gibson).
So if you knew you were going to blow higher than .08, you might rationally decide that the improved chance of beating the DWI was worth the possible extra 90 days of driving on an occupational license.
What if you had been drinking, but thought that your BAC was less than .08?
First, having a BAC less than .08 doesn’t get you there. If your BAC is .06 or higher, a reading of .08 is within the machine’s margin of error.
Second, remember that if you have been drinking your judgment might be impaired. If you’ve had anything to drink, you might not be the best person to guess at how intoxicated you are.
Third, remember that, in Texas, by the time you’re asked to blow into an Intoxilyzer-5000, you have probably already been arrested, which generally means that the cop thinks that he has probable cause (based on the field sobriety tests) to believe that you had lost the normal use of your mental or physical faculties.
Since a DWI can be proven either by loss of normal use or by a BAC over .08, if you blow under .08 after you’ve been arrested the officer does not have to cut you loose. You can still be charged with DWI and have to deal with the same headaches and risks as if you hadn’t blown.
What if you haven’t been drinking at all? If you blow .00, you’re buying yourself a date with a “Drug Recognition Expert”, a cop trained to find some explanation for your loss of mental or physical faculties. Even if you haven’t been drinking, you can be prosecuted for DWI if the police think that you have lost your faculties because of the introduction of a drug into your body.
So don’t blow.
Even better, if you’re pulled over in Texas and the cop asks you to to the field sobriety tests, politely decline. It’s a rigged game. More on that later.