Should I Blow?

by on December 29, 2011

The most often asked question of a criminal defense and DUI attorney is “Should I blow if a breathalyzer is requested?” This occurs after a person has been arrested for suspected DUI, DWI or OVI. While some attorneys advise to always refuse a breathalyzer if you have had anything to drink, I do not agree that the answer is that simple.

One problem is that if you refuse to take the breathalyzer, the prosecution can have your license suspended for up to 120 days, regardless of whether you are convicted or acquitted of the underlying DUI. This is an administrative suspension based solely on the refusal of the breathalyzer or other alcohol test. Another consideration is that the refusal can be used against you in a trial of the action as indicia of impairment.

If a driver has actually consumed one or two alcoholic beverages, the breathalyzer may actually benefit him/her in proving that the alcohol concentration was under the legal limit. There are complex formulas to determine what a blood alcohol level may be and they are based on the person’s sex, weight, amount of alcohol consumed and length of time during consumption. The following link is interesting and fairly accurate in predicting what a blood alcohol level may be. Additionally, the food that the person has ingested will affect the blood alcohol level.

The defendant should also be aware that if you blow over a .15, then the case is considered aggravated, which mandates jail time even for a first offense. A refusal is considered an aggravator for second or subsequent offenses, but not for first offense DUI. Therefore, if a driver has consumed large amounts of alcohol and does not have a prior DUI conviction, it is suggested to refuse the breathalyzer.

The police in Kentucky may request either a breath test, blood test or urine test. The breathalyzer is requested most often because of its ease of use, time required to take the test and number of people necessary to have the results entered as evidence in a trial. The police will generally only request a blood test if the driver is suspected of using other drugs or a combination of drugs and alcohol. Defendants should be aware that they have the right to a second test of their choosing once they submit to the test requested by the police officer. I often suggest that if you blow over the limit on a breathalyzer to request a blood test be taken. This is at your expense and is generally done at a local hospital.

If you have been arrested and charged with DUI, you should contact an attorney before next appearing in court. Whether you have submitted to a breathalyzer or refused to consent to a breathalyzer, an attorney can assist you through the legal process. In certain cases, a defendant can be acquitted regardless of the breathalyzer result or the refusal. If you have questions or concerns, contact Michael Bouldin for a consultation at 859-581-6453 (581-MIKE) or email at mike@nky-criminal-defense-lawyer.com .

While I practice in both Ohio and Kentucky, the advice herein is intended for Kentucky. The refusal in Ohio will subject the driver to immediate suspension, and taking, of the drivers license. Also, the legal limit for the high tier aggravator in Ohio is .170, not .150.

{ 2 comments… read them below or add one }

robert July 30, 2012 at 4:28 pm

hello sir im a 23 year old and im currently in the army national guard and im facing charges for a dui. i blew a .147 in the portable breathalyzer but was never asked to blow at the police station after my arrest. first of all i was stopped for no reason after leaving the bar. i have court on friday and im confused if i should plead guilty or not, so im asking for any adivse please and thank you

mbouldin July 31, 2012 at 9:56 am

If you can hire an attorney prior to court, do that. If not, plead Not Guilty and the case will be set for a pretrial conference. The PBT (portable breath test) is inadmissible in court. You may also be “charged” with refusal if the officer states that he offered you a breathalyzer or blood test and you refused. If that is the case, you will have your license suspended based solely on the refusal. A good criminal/dui defense attorney will advise you on a number of issues here. For example, a Motion to Suppress should be filed if there was not probable cause to stop your vehicle. If the court finds that there was not probable cause, they will suppress the entire stop and the case will be dismissed.

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