Should I Stay or Should I Blow?

I am often asked by clients and friends whether or not they should submit to a breathalyzer test if they are arrested for driving while intoxicated. They usually preface the question with, “I’ve been told I should always refuse.” Unfortunately, the answer is more complex than that, and it is impossible to render advice that could be applied evenly in all circumstances. If you called me late at night to ask what you should do when faced with the question, my advice will be different depending your particular circumstances.

And to that extent, this post is not legal advice.  I am posting this only so that the reader can better understand the issues we consider in helping our clients who have been arrested for DWI.

Missouri DWI laws can affect a person in two ways. First, there is the potential of criminal consequences, including probation, fines, or a jail term. Second, the arrest may have severe ramifications on your driving privileges. Whether you submit to a chemical test—blood, breath or urine—can affect the outcome on both the criminal case and your ability to drive.

Let’s assume that you are pulled over in Missouri. On a typical DWI stop in Missouri, the officer must first have a reason to stop you, usually either by you entering a DWI checkpoint or by witnessing you commit a traffic violation. Once the officer has you pulled over, she can only conduct a DWI investigation and order you from the car if she reasonably believes that you may be too intoxicated to drive. Smelling of booze, admitting to drinking, acting drunk, erratic driving, etc., are all reasons for an officer to order you out of the car for additional testing.

Once the officer orders you out of the car, you can expect a battery of tests that were designed by NHTSA in the late 1970s. These are known as the Standardized Field Sobriety Test (SFST), and they include a walk-and-turn, one-leg stand, and the horizontal gaze nystagmus test (HGN, which is an eye test). The two dexterity tests in theory ferret out impaired drivers by forcing the brain to both concentrate on the balancing act itself as well as the instructions that were given. This type of multitasking is harder when you’ve been drinking. The HGN test looks for the presence of nystagmus, which is an involuntary twitching of the eye that occurs when the neurological impulse in the optic nerve is affected by an intoxicant.

Incidentally, the HGN test is rarely administered correctly. A study in Texas surveyed 50 random dash-cam videos of DWI stops. Forty-nine of the 50 state troopers administered the test incorrectly. In Missouri, improperly administered HGN tests are inadmissible in court, and in my practice I often see officers adminster it incorrectly.

These tests ultimately are designed to give an officer sufficient evidence for probable cause to arrest you. According to NHSTA, the combined results of the tests are approximately 80% accurate at distinguishing between who is and is not impaired. Yes, that means that if the tests alone are the exclusive barometer for deciding whether to arrest, one in five will be falsely arrested. Nonetheless, they have been upheld as a sufficient basis for probable cause to arrest.

In Missouri, you will not lose your license for refusing to submit to SFSTs or portable roadside breathalyzer tests (PBTs).  If you are asked to submit to testing that may impact your license, the officer must tell you so.

Once you’ve been arrested, the officer will take you in and, after a series of questions, ask you to submit to a breathalyzer test. He will also tell you that if you refuse to blow, you will lose your driving privileges for one full year. And the decision to blow or not isn’t easy.

In the context of the criminal case, i.e. whether or not you’re guilty of driving while intoxicated, refusing to blow is evidence of consciousness of guilt. That is, why would you refuse if you had not been drinking? So refusing has some evidentiary value against you, but it isn't as damning as a high BAC result. If you blow and your blood alcohol content exceeds 0.08 %, you can be convicted of driving with excess BAC regardless of impairment. In other words, it becomes nearly automatic for a prosecutor to prove you’re guilty.  From a purely evidentiary stand point, then, refusing to blow denies the prosecution of potentially strong evidence, and improves your chances of winning at trial (contrarily, if you've not been drinking or have had only a small amount, it also eliminates the possibility of an exhoneration).

For a first time DWI offender in Missouri, a guilty finding generally carries probation along with special conditions, such as a SATOP (Substance Abuse Traffic Offender Program) class, Victim Impact Panel, and community service. A person rarely goes to jail on a first offense. So the consequences of being found guilty are generally tolerable though inconvenient, with the biggest impact for most being the financial cost of resolving the case (usually $2,000 to $3,000 total). For a person with prior offenses, the consequences can become far more severe, including mandatory prison time. The decision to provide evidence that can be used against you at trial—while balancing against the impact on your license—will depend in part on whether or not you have prior DWIs.

The Missouri DWI statute has yet again been amended, and in some instances jail may be required even for first-time offenders. The bill was not available online at the time of this posting, but I will update this once it becomes available again on the General Assembly’s website.

If you submit to the test, and the test is high, you will receive a 15-day temporary driving permit. You may continue driving past that point so long as you file a timely appeal. These appeals are handled by the Administrative Hearing Commission, which will not negotiate an outcome that allows you to avoid the suspension. That means that so long as the rules were followed by the officers, you will lose your driving privileges for 30 days, and they will not be returned until you complete SATOP and pay a reinstatement fee.

If however, you refuse to blow, your appeal will end up in Circuit Court, where the local county prosecuting attorney, rather than a hearing officer, represents the Department of Revenue. Many of these attorneys will negotiate an outcome where you will not lose your privilege to drive. But this varies on a county-by-county basis. For example, Platte County prosecutors will not negotiate; if the judge finds that the officers followed the rules, you will lose your privileges for a full year. In Jackson County and Clay County, however, the prosecutors will agree in most cases to an outcome where your driving privileges are preserved depending on your prior record and the outcome on the underlying ticket.  This means that in some circumstances, refusing to blow will not only improve your defense at trial, but also preserves your driving privileges.

In sum, whether to blow or not depends heavily on your prior record and the county where you have been arrested. It’s a complex question that can only be answered on a case-by case basis. If you find yourself in this situation, get a hold of a lawyer. By law, you will have 20 minutes to find one before you have to decide what to do. So start dialing….

My 24-hour number is (816) 521-8249.
Rick Johnson
Johnson & Johnson, LLC
Kansas City, Missouri
http://www.johnson-johnsonllc.com/