To Blow, Or Not To Blow (In A Breathalyzer)

Driving While Intoxicated Being Tested With A Breathalyzer
Driving While Intoxicated Being Tested With A Breathalyzer

Following up my last post about drinking and driving, today I answer the ultimate drinking and driving question:  “Should I blow?”

You can ask another New York traffic lawyer this question and get a different answer but below is my advice (and I am sticking to it).

As a threshold matter, if you can’t remember this advice when asked to blow, you’re likely too drunk to be blowing. Whenever you are clearly three sheets to the wind, I recommend NOT blowing. The reason is that you are clearly going to be over the legal limit and why help the prosecutor prove his or her case?  Further, if you blow some obscenely high reading, the judge could very likely get pissed off and hold it against you in sentencing. By not blowing, he or she likely will not know how drunk you were. Keep in mind, however, that a motorist who wrongly refused a breathalyzer test in New York is subject to as 12-month loss of license (while someone convicted of DWI who does not refuse will only lose his or her license for 6 months).  Update: In addition, by blowing, you may be providing proof that your Blood Alcohol Concentration (BAC) was sufficient to be charged with Aggravated Driving While Intoxicated. This more severe charge occurs when your BAC is over .18 limit. VTL 1192.2-a. Aggravated Driving While Intoxicated is a misdemeanor punishable by up to a year in jail.

On the other hand, if you had a few drinks and possibly even aren’t over the legal limit, I highly recommend blowing.  If you below less than the legal limit (.08 in New York for DWI and .05 for Driving While Impaired), then you are free to go on your way.  Even if you blow above the legal limit, presumably it will not be excessively over the limit and, at some point in your case, you’ll likely be offered a plea bargain to a lesser charge.

The harder question is when you are in between. Specifically, you are not slightly buzzed but not severely inebriated. This is a difficult decision but ultimately I suggset blowing in this situation too. Even though you are likely to reveal yourself to be legally drunk, you will still most likely be offered a plea bargain (assuming the reading is not too exorbitant). If you didn’t blow in this situation, however, the refusal will likely result in no plea bargain being offered. Plus, as discussed above, a motorist who wrongly refuses a breathalyzer is subject to as 12-month loss of license (rather than just six).

Please note that the above advice is focused on the criminal consequences of drinking and driving. There are civil consequences as well which are imposed by the New York Department of Motor Vehicles. The DMV will suspend motorists for 12 months if they wrongly refuse to take a breathalyzer. So by refusing to blow, you may help your criminal case but, at the same time, you are potentially doubling the amount of time that you may lose your privilege to drive.

Putting all of the above for a moment, I strong encourage all to refrain from operating a motor vehicle ANYTIME that you drink. It is just not worth it and, of course, you don’t want to hurt yourself or others.  Having defendant many motorists from this charge, I can tell you that it is NEVER a fun, easy or painless experience.  To the contrary, it is onerous, stressful and costly.

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5 Comments. Leave new

  • The problem for most people, I think, is that they’re clueless about what a 0.08 reading feels like, and unless they’re thoroughly buzzed, they have no idea if they’re over or under the limit. Can you have two glasses of wine at a social event, feel just fine, and still get nailed for DWI? I have no idea, and I doubt that many of us do — and finding out could be an expensive proposition.

    Maybe bars should be required to have a breathalyzer available, for voluntary use by patrons who want to find out. I’m sure you’d have to disable the high end, to discourage the inevitable idiots trying to “outscore” one another, but it’s worth thinking about.

    • Jim D,

      They make retail breathalyzers and, for social drinkers, this would be wise purchase. Generally, they say one drink per hour keeps you under the limit but, in my experience, I think it is more like one drink per two hours.

      The best answer is to have someone else get you home if you plan on drinking. It is the only way to guarantee that you don’t get a DWI and all the bad consequences that flow from one.

      Matthew Weiss

  • Usually I don’t make a comment on blogs, but I want to say that this post really forced me to do so. Really nice post!

  • Hi. I like the way you write. Will you post some more articles? I have been wondering about this issue,so thanks for posting. Nice writing style. I look forward to reading more in the future.


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