Criminal Law Blog
January 21, 2005
If you ask me whether you should blow into the breathalyzer machine when you have been arrested for DWI, I would say “no.” Why? The short and sweet answer is: because there is nothing in it for you.
Let me explain in a little more detail.
The first reason not to blow is that if you do, and the test comes back at .08 or higher for your blood alcohol content, then you have just made it a lot easier for the prosecutor to prove his case against you. Texas law defines “intoxicated” to mean either one of two things: 1) your blood-alcohol content is .08 or higher; or 2) you have lost the use of any mental or physical faculty. By not blowing, you prevent the prosecutor from having any evidence of what your blood-alcohol content is. By not blowing, you force the prosecutor to use definition number 2, which is a lot more subjective. The most the prosecutor can do with your refusal to blow is prove that you refused to blow and argue that you knew you were drunk and that’s why you refused. Many jurors have heard the advice not to blow and wouldn’t blow, either.
The second reason has to do with driver license surcharges. Perhaps one of the strangest things the Legislature has done recently with regard to consequences for DWI is to pass a law which says that those defendants charged with DWI whose blood-alcohol content is .16 or higher will pay a $2000 surcharge every year for three years after they are convicted of driving while intoxicated. However, if your blood-alcohol content is between .08 and .159, then the annual surcharge is $1000 per year for three years. Likewise, if you do not blow, but you are nevertheless convicted of driving while intoxicated, then the surcharge will be $1000 per year for three years. So that’s the second reason: by not blowing, you reduce your maximum surcharge risk from $2000 to $1000 per year for three years.
The third reason not to blow has to do with driver license suspension. If you are arrested for DWI, the Texas Department of Public Safety will file a petition to suspend your driver license. And 77% of those petitions are granted statewide, which means that 77% of the driver licenses that DPS wants suspended are suspended. That is the result no matter whether you blow or whether you do not blow. The difference between blowing and not blowing for a first-time DWI defendant is that if you blow, the period of suspension is 90 days. If you do not blow, the period of suspension is 180 days. If you’re like most Texans, you will need an occupational driver license. And you will need it regardless of whether your license is suspended for 90 or 180 days. Either way, you will probably have to pay a lawyer to get you an occupational driver license. So there is a really nothing in it for you to blow. The consequence is basically the same. Either way, you have to get an occupational driver license.
What’s in it for you? Basically nothing. So don’t blow.
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