PRACTICAL TIPS WHEN YOU'RE STOPPED FOR A SUSPECTED DWI/DUI OR GENERAL TRAFFIC STOP
This guide will educate and give you some practical tips on what you can do when you're stopped for a suspected DWI, DUI or general traffic stop. These are some of the rights that you may exercise when interacting with law enforcement.
SHOULD YOU BLOW INTO THE BREATHALYZER?This is quite arguably one of the most common questions I encounter from family, friends and clients. They all want to know, "should I blow or not?" The answer to that question is: IT DEPENDS. There is no one size fits all. To start, if you've been drinking, by agreeing to take a chemical test, you are allowing the government to freely accumulate incriminating evidence against you that will undoubtedly be used to prosecute you. On the other hand, if you refuse to take a chemical test, it could have serious repercussions related to your driver's license. In New York, apart from prior convictions as well as the type of license a motorist possesses, generally speaking, a refusal to take a chemical test may result in a revocation of one's license for a minimum period of one year. If you possess a commercial driver's license or you've been convicted before, the revocation may be longer.
The question then of whether you should blow or not depends on several factors. First, have you been drinking and if so, how much? The general rule (though I am NOT advocating this) is that a person should not consume more than one standard drink per hour. A standard drink is defined as one 12 ounce beer, one 5 ounce glass of wine and one 1.5 ounce of distilled spirits. You should note that there are other factors that affect whether someone is affected by alcohol but again, the general wisdom has been no more than 1 drink per hour. So getting back to the original question, should you blow or not? Well, if you've had more than one standard drink per hour, your blood alcohol level may come back over the legal limit of .08 percent. And if it comes back at .08 or greater, you will be charged with a misdemeanor DWI. But before you decide whether you should take the test or not, remember that if you've never been in trouble before, if there was no accident and you blow below a certain blood alcohol level (depending on the county), you may be able to plea bargain. If you're going to lose your job as a result of a conviction, you may want to refuse to take a chemical test since taking the test may make a prosecutor's case against you stronger.
Second, if you refuse to take the test, that will trigger a DMV hearing wherein the arresting officer must show, among other things, that (1) there was reasonable grounds to believe that you violated any section of Vehicle & Traffic Law 1192; (2) that your arrest was lawful (i.e., based on probable cause); (3) that the officer recited sufficient "refusal warnings" and (4) that the refusal was persistent. If these 4 things are shown, you are in jeopardy of having your driver's license revoked for a minimum period of one year and there is no guarantee that you will be eligible for a driver's license during that period. You may not be able to survive for one year without a license. It is true that even with a refusal, you may resolve your underlying criminal case and the refusal revocation will still remain. However, there are some ways to potentially regain a partial license while the revocation period is pending.
SHOULD YOU BLOW INTO THE BREATHALYZER---CONTINUED?Third, if you refuse to take a chemical test, many jurisdictions will not plea bargain with you without a fight. Quite often, this situation requires the advocacy of a skilled DWI lawyer to poke holes in the DA's case.
To wrap it all up, if you blow, you will incriminate yourself if you've had too much to drink. If you haven't had anything or much to drink, you may want to blow. Otherwise, refusing to blow may result in a license revocation. Many motorists cannot cope with a full or even partial loss of their full driving privileges so this may be a consideration in assisting in answering the question of whether you should blow. However, blowing may allow the government to gather more evidence against you and if a conviction may cost you present or future employment, you may want to refuse. As you can see, the question of whether you should blow is complicated. It must account for how many drinks you've had, whether you need a full driver's license and whether a conviction will cause you disproportionate harm. It certainly is difficult, particularly if you've been drinking, to make a sound decision when you're under arrest and scared. But either way, you are forced by virtue of circumstance to make a decision. In the end, as I stated above, "should I blow or not" is best answered by saying, IT DEPENDS.