To Blow or Not to Blow


Posted: April 2010

Everyone thinks “it can’t happen to me! It won’t happen to me!” Well it can and it does happen to you. Everyday people are arrested for driving under the influence (DUI). A couple drinks while at dinner, watching the big game or even hanging out with friends can put your blood alcohol at an unlawful level of 0.08 or above. Your body processes alcohol at a constant rate of .5 oz. per hour, regardless of how many ounces you consume. For example, if a 160 pound man has 3 drinks in an hour, his blood alcohol level will be at an unlawful level.

Over the past couple years; there has been a lot of controversy over the breathalyzer machine which measures the breath alcohol level of an individual. The accuracy of the machine has been challenged and in several counties across the state, and motions have been granted where the breath results are thrown out in the event of a trial.

So the question arises, “To blow or not to blow during a DUI?” There is not right answer to this question. There are several factors to consider such as the county you are in, if they have the breath motions granted; if you have ever refused to give a breath sample before, the second refusal is a misdemeanor; and how many drinks you have consumed during the night. However, refusing to submit to the breathalyzer can also result in a longer driver’s license suspension.

An arrest for a DUI isn’t just a criminal matter; it affects your right to have a driver’s license. Whether or not you are convicted in the criminal matter, the Department of Motor Vehicles (DMV) will suspend your license for a period of 6 months to a year depending on if you submitted to a breath sample. However, the DMV allows a formal review of that suspension if requested within 10 days of your arrest. In between the time you request your hearing and the actual hearing, a business purpose only license will be issued pending your full suspension. If that hearing is won, your license if fully reinstated pending the results of the criminal case. If that hearing is lost, a business purpose only license will be issued thirty days after your first temporary expires.

Even though a DUI is a second degree misdemeanor, it carries its own set of “unique” regulations. For a first time offense it is punishable by up to 180 days in jail. Unless the charge is reduced to a reckless driving or completely dismissed, any DUI plea carries with it a mandatory misdemeanor conviction. This offense also can result in a years worth of probation, DUI classes, community service hours and if your blow was enhanced, then the court must order the placement of an interlock device in your vehicle which means you cannot start your car without blowing into a machine to make sure you are not under the influence.

Driving under the influence is not just an alcohol related offense; it’s under the influence of any controlled substance. These controlled substances include but are not limited to marijuana, cocaine, and prescription and non-prescription medication. Even though the breathalyzer will not pick up on these substances, the officers can ask for a blood or urine sample, and a refusal to submit those is the equivalent of refusing to blow. An officer can pull you over for speeding, a broken tail light or any traffic infraction and if you are under the influence, they will question you and arrest you. It is a very real crime with real consequences that can happen to anyone if not careful.