Tuesday, December 23, 2008

DWI: To Blow or Not to Blow

One thing comes up a lot in DWI seminars. A client calls you late at night. They've been arrested and the cop wants them to blow into the "Breathalyzer". In most of NY the device is actually a Datamaster, but question is the same. And to be clear, I'm talking about the breath test in the station. The one in the field is commonly known as an alcosensor or field breath screen.

The answer varies from lawyer to lawyer, though some things are pretty straightforward. The most obvious one is that you shouldn't drink and drive. Okay, we've got that out of the way.

Beyond that, you have to look at the situation. One big question is: How bad do you need to drive?

If you refuse the breath test they will take your license. You get a chance at getting it back at a DMV hearing within about 2 weeks, but you usually lose that hearing.

For people who badly need to drive, this consequence is so overwhelming that it's a bad idea to refuse.

However, with the new Aggravated DWI law in NY and plea bargaining problems in some counties (especially Albany), in some cases it may actually be better to refuse. The penalties for Aggravated DWI are more severe than the "common law" DWI that you typically get if you refuse. This applies if your BAC is over .18, and the plea bargaining restrictions vary but in Albany it starts at .20. If your BAC is in that range, then you're probably not making thoughtful decisions anyway.

But if you believe, as I do, that the breath tests are highly unreliable, the danger of blowing a .20 or above might make it sensible to refuse.

On the other hand, if you don't need to drive, it may make more sense to refuse. One lawyer I know advises his clients not to blow. He believes juries will understand when the client says: "My lawyer told me not to blow. I followed his advice."

Many lawyers believe you should blow in almost any circumstance. The biggest exception is if there was an accident and there might be a dead body. In that case the consequences of a high BAC reading on the machine (prison) is typically worse than losing your license.

Based on my experience, I lean towards believing most clients should blow. Driving is important for almost everyone. And the simple truth is that we win a lot even in cases where the client blew a high BAC. Also, you might end up blowing a low BAC.

Then there are innovative approaches. I've heard a bunch. I'm not recommending anyone actually try these, but I'm kinda looking forward to the day someone comes in my office having done them. Please note this is not real legal advice - it's more humorous than anything else.

One of my favorite ideas comes from a judge (now retired). He said he carries a flask of liquor in his glove compartment. If he gets pulled over, he says he'll hand the cop the keys, open the flask and start drinking. The theory is that it renders the breath test result invalid. I don't think it'll work, but maybe some day we'll see.

Another idea is to go limp. If you're going to do this you should do it before the cop gets to your window. The theory on this one is that they have trouble stating their theory that you were drunk. They can't do field sobriety tests, and they don't get the other "clues" like glassy/bloodshot eyes, impaired/slurred speech, and impaired motor coordination. It's also hard for them to say you refused to blow. If they know what they're doing they'll get a judge to order a blood draw. But even so, they often make mistakes in that process. Still, this is a pretty risky strategy.

Maybe some of our readers will chip in with their own ideas.

The best approach is the obvious one. Don't drink and drive. I tell my clients to keep the phone numbers for taxi companies handy so they will have a way to get home. I do this myself even though I rarely drink. A taxicab ride is a lot cheaper than a DWI.


Anonymous said...

The problem is the majority that don't understand the consequences of a refusal. When your arraigning them at 2 am and suspend their license pending a DMV hearing, suddenly they want to take the test them, TOOOO late!!!

Anonymous said...

(sorry if this shows up as a duplicate comment -- not sure if it went through the first time)

Part of the problem is that defendants are not adequately advised of the consequences of a refusal. An officer will probably read a warning (from an index card) saying that a refusal may result in immediate revocation of the suspect's license, and that a refusal may be used against that defendant in court. This is insufficient, because immediate revocation and revocation for a one year period are very different things. It is also surprising that the refusal warning does not account for the fact that if the defendant is acquitted, his or her license will not be restored automatically (or at all).

In addition, while a suspect has a right to consult with an attorney prior to making the decision to take or refuse the test, he or she needn't be advised of this right by the arresting officer. It is unlikely that a first-time offender will be aware of this right, and even if he is, it is unlikely that he will have the name and phone number of a criminal defense lawyer available at the time of the arrest.

Something else bothers me as well: many counties in New York have a public defender on-call to consult in criminal cases. It is unclear whether an indigent suspect should be granted access to a public defender before making a decision as to whether to take or refuse a breath, blood or urine test. This discretion appears to be up to the arresting officer, which creates a significant "equal-protection" dilemma. Does the right to counsel only apply to those who are educated enough about the law to know their rights, and financially stable (or experienced) enough to have access to a criminal defense lawyer at all hours?

From the way the New York's laws are written and have been interpreted up to this point, that would appear to be the case.

Albany Lawyer -- care to comment?


Unknown said...

Graham makes some good points. On right-to-counsel, I don't think a public defender would be provided. The revocation is not a criminal matter - even though the consequences may be worse than what comes from the criminal charge.

Anonymous said...


first there is no PD available in our county for after hrs arraignments. I don't know of any where except the urban areas that have this.

Second, its ironic that last night at midnight I got called out to arraign a DWI/Breathalizer refusal. The defendant claimed repeatedly he refused because he wasn't driving. The gentleman had a Class A license and was supposed to start with UPS on Monday morning. I doubt he will now.

Unknown said...

I've never seen an after-hours PD either. I've seen where an Assistant DA is supposed to be on call sometimes, but you can never get a hold of them.

Anonymous said...

There is an ADA on call in most area's because if we do Felony arraignments after hours, which happens frequently, We have to give them the opportunity to be heard on Bail. Sometimes I have gone through the entire list and had to call the DA herself. her husband can be grumpy when you call her at 1:30 in the AM.