It is one of the most common questions asked of a DWI attorney: “If I am arrested for DWI, should I blow?” Sometimes a client will call and ask this question from the side of the road with a police officer impatiently waiting nearby. Other times a client will call us from a police station after a police officer has requested that they blow into a breathalyzer. But we are most often asked this question when it’s already too late and our client has already submitted a breath sample.
All states have an “Implied Consent Law” through which motorists implicitly consent to a breath or blood alcohol test under certain circumstances simply by driving on the state’s roadways. Specifically, if (a) you were driving, (b) you have been arrested for DWI, and (c) a law enforcement officer has probable causing to believe that you were under the influence of alcohol, then the Implied Consent Law requires you to provide a sample of your breath or blood to be tested. If you refuse, your driver’s license will be revoked, and some states impose additional sanctions, such as a separate criminal charge.
So, should you blow? If you refuse, then you may lose your driver’s license and face other penalties. But if you agree to provide a sample of your breath or blood, you might provide the State with all the evidence it needs to convict you of DWI.
In general, if you think your blood alcohol content may be higher than the legal limit of 0.08%, you are probably better off refusing to provide a sample of your breath or blood. Of course, there’s no way to know for sure before you are tested, but here’s a rule of thumb: take the number of drinks you have consumed, subtract the number of hours over which you have been drinking, and if the answer is more than two, do NOT blow. If the answer is two or less, then blow.
For example, if you’ve had four drinks over the course of a three-hour happy hour, then take the four drinks and subtract three to get one. One is less than two and you should be okay to blow. If you’ve had six drinks over that same period, then take six drinks minus three hours: Three. You would be best advised to refuse the breathalyzer.
Be aware that this is a rough rule of thumb that comes with several caveats. The number of drinks that would put a person’s BAC above .08% depends on their weight, sex, age, metabolic rate, recent food intake, and medications. A person who weighs 100 pounds will have a higher BAC than a person who weighs 250 pounds if they consumed the same number of drinks over the same period of time. On average, a person will metabolize about one alcoholic drink per hour depending upon their metabolic rate.
Furthermore, this rule of thumb depends on having an exact count of your drinks. A “standard drink” is defined as a 12-ounce beer (5% ABV), a 5-ounce glass of wine (12% ABV) or a 1.5 ounce shot of liquor (40% ABV). Of course beers, wines, and spirits
vary greatly in terms of their alcohol content and variances in custom cocktail recipes only further complicate things.
So as you can see, there’s no foolproof formula that can accurately calculate your BAC after a night out. These nuances are why it is important to speak to an experienced DWI attorney if you have been arrested for DWI. Police are required to allow you to contact and speak to an attorney confidentially before deciding whether to provide a breath or blood sample. But you must ASK to speak to an attorney before you agree to provide a sample of your breath or blood!