The most common question people ask me in passing is, “Hey Joe, if they get me for DUI do I blow?” When I first started handling DUI cases and before I had all the training I now have and a whole lot of DUI trials under my belt, I would instinctively answer, “No! Don’t blow! Call Joe!” And over the years and through experiences in the courtroom and in jury trials I have changed my answer. Now I say what lawyers love to say. This answer is a great answer to give because it keeps the door open to possibilities on each side of an answer. “It depends.” That is what I say now. Why? Because it depends.
Let’s go through this one step at a time so I can make sense of this scenario for you. First of all, if you refuse the breathalyzer in SC the police officer will take your driver’s license on the spot (as long as it is a SC license- if it’s an out of state license he can’t take it but will suspend your ability to drive in SC). So the officer has taken your license from you and issued you a Notice of Suspension effectively suspending your license for 6 months. Your lawyer can request a hearing challenging this suspension. Ultimately, if you lose this hearing then you will have to get a route restricted license for 6 months meaning you can only drive to and from work, gym, church and during only certain times of the day plus the state will make you take what they call the ADSAP class (Alcohol and Drug Safety Action Program). So refusing the breath test produces that possibility. At trial in front of a jury the prosecutors will try and use your refusal against you as if you were trying to hide something or cover something up by refusing– even though it is your Constitutional right not to incriminate yourself or submit to their tests. So there are 2 reasons why you might want to blow. I mean, if you’ve had a lot to drink then giving the state a big number on the breathalyzer to use against you is not going to help your case.
What if you blow and you blow a .15 or higher? The SC law says the officer must take your driver’s license (again, unless it is an out of state license and they will not take it but will suspend your ability to drive in SC). So let’s say you blow a .16. The legal limit in SC is .08. So you just blew double the limit. So the officer will take your license and issue you a Notice of Suspension suspending your license for 1 month. Again, your lawyer would request a hearing. You would drive on a temporary unrestricted license until we had a hearing challenging the suspension. So you could lose your license for 1 month if we lost that hearing plus the state will make you take what they call the ADSAP class (Alcohol and Drug Safety Action Program). At trial the state will use your breathalyzer reading against you hammering home how far over the limit you were and therefore saying you were grossly impaired to be driving.
But what if you blow and blow under a .15….so you blow a .12 (just above the legal limit)? There is no license suspension or extra hearing (or what could end up being multiple court appearances against the DMV challenging your license suspension for refusing the breath test or blowing a .15 or higher. Your lawyer can explain this to you). So this is best case scenario really. You blow just above the limit with no license suspension or ADSAP class requirement or hearing challenging the suspension. That’s ideal. But you have no way of knowing what you would blow so what do you do? Plus blowing above the limit can be used against you in trial. So blowing could be bad for your DUI case but good initially for your license suspension, meaning you won’t be suspended.
Obviously the best course of action is not to drink and drive. But if you do find yourself in the position where you have been drinking and driving and are under investigation by the police for being an impaired driver, only you can make the best decision as to whether you should give the state any evidence as to your body’s alcohol concentration. I have had plenty of clients blow and blow a 0.00%. If you blow that number you will still be arrested. They won’t let you go home because they will want a urine sample as they are now suspecting you’re impairment is due to drugs or narcotics. And you can refuse to provide a urine sample. Then you again have a license suspension issue. Lastly, keep in mind that they only let you blow one time. You do not get to blow twice. (this issue is another blog post)….so, stay tuned. So to answer the question as to whether to blow or not– it depends. If you have had too much to drink and are under investigation for DUI, a good rule of thumb is to refuse the breath test.