Should I Blow?

05/19/20

As an attorney specializing in criminal law, I am constantly asked: “if I get pulled over and I have been drinking, should I consent or refuse to take a breathalyzer test?” This question requires a very nuanced response; and is very important, as one’s ultimate decision to take the breathalyzer may be life altering.

First and foremost, it goes without saying that you should not drive while under the influence of drugs or alcohol. In this day and age, the risk is simply not worth it. There are a variety of ways to get to your destination (taxi, Uber, Lyft, etc.); there is no need to put your life or the life of another in jeopardy.

Nevertheless, if you do find yourself in this situation and refuse to take a breathalyzer test, the potential consequences are very serious. You risk being arrested and criminally prosecuted, attending a refusal hearing, having your license suspended, having insurance issues, having employment issues, and needing to hire a criminal attorney. Specifically, if you refuse to take a breathalyzer test and are not successful at your refusal hearing, you will lose your privilege to drive in New York for an entire year with no conditional license until the court case has been concluded, which could take many months. All these consequences are not only emotionally, but also financially draining.

That being said, if you are pulled over by a police officer on suspicion of driving while intoxicated in New York and you are extremely intoxicated, do not consent to a breathalyzer test. If your blood alcohol content (BAC) is greater than .18, you will be charged with an aggravated DWI; and in most cases, you will end up with a criminal record. However, if you refuse the breathalyzer, there will be no definitive BAC reading for a judge or jury to hang their hat on. In most instances, it is more difficult to prosecute a DWI matter without a BAC reading. 

On the other hand, if you are only slightly under the influence and you believe that you will have a low BAC reading, then you should consent to take a breathalyzer test. If you blow lower than a .08, you will probably be charged with a Driving While Your Ability Is Impaired (“DWAI”), which is a violation and not a crime. In this instance, you will lose your license for 90 days, but you will not have a criminal record.

However, what if you are unsure whether you will blow a .08? Should you consent to the test or refuse? If you have an attorney or know one that is knowledgeable regarding this topic, the police should permit you to make a phone call before determining whether to blow into an intoxilyzer. Use this opportunity to call your attorney so he or she can quickly gather the necessary information to guide you. Regardless, the answer to this question will likely be an on the spot judgment call.

In addition, if you perform a Standardized Field Sobriety Test (SFST), which may or may not include a Portable Breath Test (PBT), you can use your performance on these tests to decide whether you are sober enough to blow under a .08, as the intoxilyzer is the only test that is legally admissible in court.        

While a “yes” or “no” answer to a legal question is always desired, there is simply no one answer to this question. In fact, the question regarding whether “to blow or not to blow” is ultimately going to involve an assessment of a variety of factors. However, in rare situations where someone has sustained serious injury or worse, you should refuse to take a breathalyzer test. Notwithstanding the foregoing, if you are under 21 years of age and are faced with these same issues, different rules would apply.

Whether you decide to blow or not, it is important to understand that the repercussions of a DWI are very serious. While your driver's license may be suspended if you refuse, you may nevertheless refuse due to other potential consequences. Learn more by speaking with an attorney, who can discuss the strengths and weaknesses of your case and your best legal options moving forward.

-Michael S. Finkelstein