Kevin J. Waite, P.C. | Attorney Blogs

To Blow or Not to Blow

North Idaho Attorney Kevin J. Waite, P.C. on Wednesday, December 20, 2017

To blow or not to blow – that is the question that Hamlet might face if stopped on suspicion of DUI:

Whether ‘tis better in court to chance
The slings and arrows of breathalyzer test results
Or to encounter a sea of troubles by refusing to blow, but,
Perhaps by refusing to blow, defeat a DUI charge.

Here in Kootenai County, the local newspaper recently addressed this question in the context of an article about law enforcement taking a zero tolerance approach to impaired driving and to testing refusals during the holiday season. The article reported that refusal to submit to a breathalyzer test will be met with a search warrant for a blood draw. It included the statement that, “In first offense cases, it often doesn’t behoove a motorist suspected of a DUI to refuse to consent because penalties for refusal are greater than the penalty for a misdemeanor DUI.” As a literal statement, this is not true. It compares apples to oranges and confuses the analysis.

The newspaper's statement combines two different procedures that usually come into play during a DUI stop, one civil and the other criminal. A DUI charge is criminal. A motorist’s refusal to take a breathalyzer test or failure of a breathalyzer test will result in the suspension of the motorist’s driver’s license.  That case is civil. The civil penalties and the procedures for refusal and for failure of a test are different from each other.   

The following chart should illustrate the differences between the sanctions for refusal to blow and for failing the breathalyzer test:

Refusal to Blow (Civil) *Even if stone cold sober:

  • License Suspension one year (no restricted driving privileges allowed) 
  • Fine of $250

Penalties For 1st DUI (Criminal)

  • Up to 6 months jail
  • up to $1000.00 fine 
  • license suspension of up to 6 months (1st 30 days must be absolute -- no restricted privileges)

Blew and Failed the Test (Also Civil):

  • License Suspension up to 90 days 
  • 1st 30 days must be absolute (restricted privileges available after that)
  • Other sanctions not listed here

Penalties For 1st DUI (Criminal):

  • Up to 6 months jail
  • up to $1000.00 fine 
  • license suspension of up to 6 months (1st 30 days must be absolute -- no restricted privileges)

The penalties for a DUI do not change because the defendant refused to take a breathalyzer test. However, the civil penalties for refusal are indeed greater than the civil penalties for taking but failing the test. The civil penalties for refusal and failure are limited to driver’s license suspension, (plus a $250.00 fine in the event of a refusal). Since the DUI penalties are the same regardless of whether a person took or refused the breathalyzer test (although law enforcement and the prosecution may treat refusal cases more harshly), it is not helpful (and it is misleading) to compare the civil penalties for refusal to the criminal penalties for a DUI.

Back to Hamlet. What should he do? Unfortunately there is no clear answer. If Hamlet is like most people who have really had only two drinks and had them with a meal, he will probably pass the test. If Hamlet is confident he will pass the breathalyzer test (i.e., with a score of less than .08) he should of course take the test. It will be helpful evidence. There is a good chance he will not be arrested or charged (although other factors sometimes swing law enforcement’s decision the other way). But if Hamlet knows or should know that the test result will be .08 or higher then it’s a more difficult decision. It's essentially a trade-off between the benefit of avoiding that evidence coming into existence and the burden of a longer and tougher suspension period (and a $250.00 fine). In other words, if there is no breathalyzer test evidence, how strong is any other evidence that tends to prove intoxication? As the newspaper noted, law enforcement can and might apply for a warrant for a blood draw, usually providing much the same evidence as the breathalyzer.

This blog, like all other blogs, should be treated as a general discussion and not as legal advice for any specific situation. Apologies to Shakespeare.