To blow or not to blow, that is the question

Kimberly2 1Author:

Kimberly J. Benjamin, Founder & Managing Attorney

If I’ve been asked once, I’ve been asked a thousand times, should I blow in the machine if I get stopped?

My answer to this hypothetical is always, are you drunk?

I know, I know, that’s a smartass response to a legitimate question. But there isn’t really one distinct answer, as DWI cases are won on a case by case basis depending on several different issues.

First, everyone should understand that when they decide to operate a motor vehicle on a public road, in every state, you are consenting to a test of your blood, or breath, if an officer has probable cause to believe you are driving while intoxicated.

If you choose not to blow into their machine, Missouri Department of Revenue will try to suspend your license for a year.  It’s called a refusal in Missouri, and here the Department of Revenue issues the revocation if you refuse to blow into the machine.

Understand, I’m talking about the big machine in a police station, or sometimes, in the trunk of a cop car. I’m not talking about the little hand-held portable breath test machine, as those are completely worthless and you should never blow into them unless you are stone cold, fresh from church sober.

These portable breath test, handheld machines are in a word “junk.” Law Enforcement will swear by them, but then tell you that they haven’t complied with the manufacturer’s maintenance recommendations and they were just handed it a few years back and told to press that button until it beeps. They are not maintained or calibrated and are no more trustworthy than your bathroom scale compared to a doctor’s office scale.

Politely say, “No thank you.”  Or you may say, “I’ve already admitted to drinking one drink officer, so you already know alcohol is present. I choose not to provide a sample,” or “I’m not drunk and I don’t trust something that has been rolling around in your car to tell me that I am.”

The biggest problem is that despite the fact that these machines are supposed to be used to tell if alcohol is present, law enforcement officers now rely on the numbers they generate. If they see above a .08, then they are going to arrest regardless of any other indicators or how well you’ve done on the field sobriety tests.

Now back to the big machine. If it’s your first DWI and you really believe you are sober, then take a shot. Be aware though, a blow over .08 means that moving forward you will be assumed intoxicated while you were driving, unless we can prove otherwise. It’s a tough road sometimes, but it’s doable.

Keep in mind that .08 is not “drunk”. You may feel sober, not tipsy at all. Remember that .08 can be just 4- 12 ounce cans of beer are in your system. While blowing over .08 will get you a notice of a 90-days license suspension and a DWI charge, we win these cases all the time.  Because the number does not mean you are legally intoxicated. So have faith and hire an experienced DWI law firm.

If you blow under a .08, then the officer should send you home with his or her apologies.

Mind you, all of this is a crap shoot and unless you have the exact amount of alcohol you’ve consumed and when you consumed it, food you’ve consumed and when you consumed it, current time, current weight, and a calculator, your guess work is going to be just that guessing.

So, the bottom line is that anyone who definitely says that no one should ever blow under any circumstances is wrong, and anyone who says blow every time are wrong as well.

It’s a case by case basis and a tough decision for anyone.

Always ask to speak to an attorney, demand a phone and give us a call.  We at the Missouri DWI & Criminal Law Center at the Benjamin Law Firm in the KC Metropolitan Area win these cases all the time and help good people make sure a mistake does not ruin their future.  Make an appointment now if you need help at

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