• Victor Feraru

To Blow, or Not to Blow?

By: Kenneth S. Feraru, Esq.

Every so often, I'll get a phone call at around three o'clock in the morning. The caller has just received a free ride in a Ford Explorer, a Chevrolet Tahoe or a Dodge Charger. Nice vehicles, but not a fun ride while handcuffed in the back seat. At this point, the caller is either at Police Headquarters or a State Police barracks, and is being asked by Officer Murphy or Trooper Collins to submit to a breath test to determine what the caller's blood alcohol concentration (BAC) is, an indication of whether the caller is intoxicated and therefore was driving drunk. This is not a good position in which to be.

By operating a vehicle on the public highways of the State of New York, one consents to provide the State with samples of your breath and/or blood when asked to do so by a police officer. Consents in theory, at least, because one can refuse to provide such a sample. However, refusal to do so is not without consequences. 

So, let's get back to that phone call. The caller will be in a state of panic, and will be asking me, “Should I blow?” The question refers to should he or she breathe into the into the Intoxilyzer 9000, the Alco-Sensor IV or other breath test apparatus. Unfortunately, this question is better answered after I know the results of the breath test, a luxury not allowed by law enforcement officers. As mentioned above, even though motorists are presumed to have consented to take the test, they can refuse. Unfortunately, a refusal comes with severe consequences. These include a year long revocation of one's driver license, additional fines/fees and other undesirable results. This is a revocation that is not vacated even if the accused is acquitted at trial. The accused motorist is entitled to a hearing before an administrative law judge with the DMV to determine whether the officers acted properly in advising the motorist of the consequences of refusing to blow, the propriety of the traffic stop and other issues, but usually the revocation stands. In addition, should you take a case with a refusal to trial, the jury will likely hear an instruction that the jury can believe, if it chooses to, that the accused refused to take the test because he or she knew the test would result in incriminating him or her. This is known as consciousness of guilt. Again, the Defendant is entitled to a Hearing in Court to determine whether he or she refused after a proper instruction that his or her license would be revoked because of a refusal, but again, usually the jury will hear the damning instruction. In addition, some District Attorney's Offices will not plea bargain a case with a refusal down to a lower charge. Normally, there is a chance of a reduced charge in the event of a relatively low reading. A refusal may jeopardize the chance of getting the plea bargain.  

The good thing about refusing a breath test is that the prosecution now has that much less evidence against the Defendant, which could result in an acquittal or a jury verdict of a lesser charge. Nevertheless, the Defendant could still be convicted, depending on the testimony of the police officer, including the results of other “sobriety” tests and observations of the Defendant, and any statements made by the Defendant to law enforcement officers. The officer will usually testify that the Defendant exhibited the “classic signs of intoxication,” which include a strong odor of alcohol, watery, bloodshot eyes, slurred speech and being unsteady on his or her feet. 

So, what do I tell the caller? Honestly, that's a really tough call! In general, a motorist should considering blowing if he or she is truly not drunk, like he or she had nothing to drink, or only a small glass of wine with a big dinner several hours before. In this case, there is a good chance that the reading may not hurt him or her. However, if the motorist is truly “blotto,” due to his imbibing of the better portion of a bottle of 100 proof Bourbon washed down by several beers, DO NOT blow! You will be in such trouble no matter what, that you do not want to give the prosecution any more evidence. What to do if your case falls somewhere in the middle of these two extremes? Good question! And, unfortunately, one that is impossible to answer in this forum; it is that complicated. 

The consensus of legal opinion of what to do should you be in the unenviable position of being asked to take a breath test after an accident involving a fatality is NOT to blow. However, again, that is still merely a guideline and may not be the best course of action in every case.           

Another problem to consider is that the breath test apparatus themselves are not without inaccuracies. There are a number of circumstances that will throw off the reading. One of these is what is known as “mouth alcohol.” This is the effect of recent ingestion of alcohol so that there is still alcohol in the subject's mouth. The fumes from the alcohol in the mouth will cause the breath tester to give an artificially high reading. And, there are plenty of other factors that would cause an inaccurate reading, a topic for another day.   

Of course, those are very general rules, and I would not guarantee that they would necessary impart the best course of action. They are only guidelines at best. However, it is always the best course of action to never drink and drive.     

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©2020 by Kenneth S. Feraru, P.C. 

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