Should I take the breathalyser


Should I take or should I have taken the breathalyzer?

I am frequently asked this question and the answer is that it depends.

If you are arrested for DWI / DUI and are asked to blow into a Breathalyzer, any positive reading - even 0.01 could be used to support an argument that you were driving while intoxicate or impaired. If you blow 0.08 or more, you could be charged with 1192.2, if you blow 0.18 or more, you could be charged with aggravated DWI, 1192.2a. So, if you've been doing some moderate or heavy drinking, never blow. I know your wondering - how can a 0.01 reading could hurt me? This is be because blowing under 0.08 does not constitute an absolute defense to all of New York's DWI laws meaning that the prosecution can point to circumstantial factors to argue intoxication and/or impairment. For example, if you are a driver in a huge accident, witnesses say you're slurring your speech, unsteady on your feet, smell like alcohol, have empty beer cans in your car, and due to NYPD delay you blow a 0.01 but 8 hours after the accident, don't expect to be released.

If you refuse the Breathalyzer, your privilege could be suspended for a year, and the fact that you refused could be used against you in court. If you would have blown a 0.20 but refused instead, this was smart. If you would have blown 0.03 within 2 hours of driving and no one was injured, refusing was probably a mistake.

If it's your first arrest, you take the Breathalyzer and blow a relatively low blood alcohol concentration, your attorney may have an easier time negotiating with the prosecutor. I represented someone who blew 0.07 and I convicted the prosecutor to lower the charge to an improper lane change and a small fine which saved my client from a permanent DWI related conviction and the associated permanent record and insurance problems. If he had refused the Breathalyzer, the outcome would have probably been worse.

The best strategy is to be mindful of your situation. If you are definitely sober and you know it, blow. If you had an extremely low amount (1 or 2 drinks over several hours) and you metabolize alcohol normally, you're probably safe and should blow. Keep in mind that the legislature never intended to ban any driving after drinking - only when the result is impairment or intoxication.

If you're not sure what to do or how much you've had to drink, never take the Breathalyzer. If you had a lot to drink but the police made a mistake and you have had several hours to sober up, don't blow. Most importantly - if you forget what you read here, don't blow.