May 4, 2016
This is, by far and away, the most common question we get asked by people. Please understand that the answer to this question is not perfect. There are many factors about your criminal history, family, job, etc. that influence this choice. Additionally, without a crystal ball, there is no way for an attorney to definitely tell you what will best help your case in the future. That said, there are some common principles that will help you make this decision. Knowing these in advance can be helpful, but we understand that you may not remember.
First and foremost, besides telling the officer if you will take a breath test, DO NOT ANSWER ANY OTHER QUESTIONS POSED BY THE OFFICER. Instead, tell the officer that you do not wish to answer any additional questions until you have spoken with a lawyer.
Understand that you do not have the right to decide what test the officer gives you, and the officer has the right to ask you to take more than one test. If you believe you will blow under, you should blow.
Determining if you will blow under is not easy. Do not simply consider how you feel. Many of us feel fine at a blood alcohol content well above the legal limit. While every human body is different, some basic math and alcohol physiology can help. For every drink you consumed, add .02 to you blood alcohol content. For every hour that has passed, delete .015. If you are close, particularly if this is your first offense, you should strongly consider blowing.
Even if you believe you will blow well over the legal limit, if the officer has informed you that he intends to get a warrant and draw your blood, you should blow. Otherwise, you may be facing both a refusal and a blood test over .08.
When should you consider refusing?
First and foremost, if you refuse, it is not a guarantee that you will lose your license for a year. Many people never lose their license. Many people only lose their license for 90 days.
With that in mind, if this is your first DWI arrest anywhere in the country, and you have been arrested in St. Louis County (not the city), Franklin County, St. Charles County or Jefferson County, many people qualify for a deal that allows them to keep their license if (and only if) they refuse the breath test. The deal is not available if you seriously injured somebody in this case, and it is not a guarantee. You would be required to plead guilty to DWI in order to get this deal and, among other things, complete community service. But… you would not have to receive a conviction. Most people would be required to complete two years of probation and, at the end of two years, if you don’t get into any trouble, the DWI would drop off your public record. If you are a first offender in these counties, and a plea of guilty will not adversely affect your career (i.e. commercial driver, military, etc.), refusing the test is a good option.
This is very important, though. DO NOT tell the officer that you are refusing in order to get this deal. If you do, you may not be eligible. Instead, simply say, “I am declining to take the test at this time.”
If you have prior DWIs anywhere in the country, unless the officer intends to get a warrant to draw your blood, you are much better off refusing to take the test. This is especially true if you have two or more DWIs and, therefore, could be facing a felony. Very simply, if you have prior DWIs, REFUSE TO TAKE THE BREATH TEST.
We hope that this information will be of assistance to you.
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