DWI – To Blow or Not to Blow?

Lately, it seems not a weekend goes by without another news story about a DWI crash into a house, or tragically, a fatality.  With such horrible trends continuing, law enforcement is sure to step up DWI prevention through checkpoints and aggressive policing.

As a DWI defense attorney, I am always asked: “If I am arrested, should I blow or refuse?”  This seemingly simple question is actually rather complex.  Many factors affect whether taking the chemical breath test is a good or bad idea.  For example, there may have been an accident involving a fatality or serious injury; the driver may have a commercial driver’s license who drives for a living; the person may have a prior DWI and thus will face a felony DWI charge; the local District Attorney’s Office may have plea bargaining policies where no reduction is offered if a person refuses the test, or it may not offer reductions for readings above a certain level.

With all of these considerations in play, whether to take the test is in many cases a matter of opinion.  Here, I will share my opinions, while acknowledging that others may disagree for perfectly valid reasons.

For any refusal, a driver will face immediate revocation of his driver’s license for at least one year.  This is a civil sanction imposed by the DMV, and it applies regardless of whether a person is convicted or acquitted of the DWI charge in criminal court.  For commercial drivers, the revocation period is a minimum of 18 months, even if the person was driving a personal vehicle.  If a commercial driver is a repeat offender, meaning he has been convicted of any alcohol-related offense, or he has refused to take a chemical test before, he will be permanently disqualified from operating a commercial motor vehicle.

For DWI cases involving an accident with serious physical injury or death, it is usually better to refuse the test.  The civil sanctions imposed by the DMV are minor compared to the potential criminal penalties attached to such cases.

For felony DWI cases, it is also usually better to refuse the test.  The civil sanctions will normally not exceed the criminal sanctions against a driver’s license.  Furthermore, the DMV refusal hearing may provide vital discovery prior to indictment that may result in obtaining a better plea offer.  If the case goes to trial, it is harder for the prosecution to prove that a defendant’s blood alcohol content (“BAC”) was above .08 if the defendant refused to take the test.

For misdemeanor DWI cases, if the person needs to drive to earn a living, it is usually better to take the test.  The civil sanctions against commercial drivers for refusing will result in longer suspension periods than the criminal sanctions imposed.

For misdemeanor DWI cases that don’t involve commercial drivers, it is usually preferable to refuse the test, unless the local District Attorney has plea policies in place that penalize those who refuse.

These recommendations are general rules of thumb and are subjective.  Unfortunately, these decisions usually take place in the middle of the night and under stress.  The best decision you can make is to stay off the road after drinking.