The question I get asked probably more than any other is “Should I Blow or not?”
My response to this question is why would any attorney who even slightly knows anything even consider answering this question at 1 or 2 o’clock in the morning from someone calling from a police station? The answer. They would not. Why you might ask? Simply, they don’t have enough information to provide an informed answer that would be of any help to the would be client. Further, there is no real way to get the necessary information from the would be client who is sitting in the police station surround by those people seeking to assist a prosecutor in prosecuting him or her for DUI. The flip off the cuff response that most might expect of hell no, those machines are never accurate or Sure if you haven’t been drinking are not only a disservice to the would be client but put the attorney at risk of being sued for malpractice for providing such information to a person who has neither paid his fee nor signed a contract?
Putting aside such the risk of being sued for malpractice by someone who you will likely not hear from again the wise attorney may answer the hypothetical question of whether any such person should blow into any breath machine being cognizant of that fact that to tell a person to do so is, in fact, telling them to break the law since the implied consent contracts of most states require acquiescence to such a test even though the very same contract provides a right to refuse said test. Whether someone should blow into one of these machines depends on a number of specific circumstances in every situation. Have you had anything to drink? How much? How long ago? What did you drink? Have you had anything to eat? How long ago? All of these questions factor into the ultimate answer. However, please understand if you refuse to take such a test it can be used against you as probable cause in determining whether you are intoxicated. The reason for this is because the case law in most states that has that a person who is not guilty or not intoxicated would not refuse such a test if such a test would prove he was not intoxicated. Further, your refusal could also be used by the officer as a means of getting a warrant to subject you to either a urine or blood test.
Getting back to the specifics of the question “Should You Blow”? Even the people in charge of Missouri‘s breath program think this program is deficient and biased in that approximately 30% of those with a positive result are, in truth, not intoxicated and are giving a false positive. Both Missouri and Illinois are what are called “single test states”. This means the officer only has to do one test as opposed to the more preferred two test States. Further both Missouri and Illinois use the AS-IV as one of their most commonly used evidentiary breath testing machines. This machine does not even have a slope detector which is supposed to prevent mouth alcohol. What this means is that things such as breath mints, chewing gum, tobacco, and snuff along with certain medical conditions such as Gerd or even food can elevate your breath alcohol result to that equivalent of alleged intoxication. Additionally, while gross, if you have eaten all those food particles between your teeth, or dental appliances serve as tiny little sponges that soak up the alcohol, and then when you blow you blow that same alcohol right into the machine. If you are going to consent which is the law under the implied consent contract I would suggest upon leaving you then go to the nearest hospital and have a blood alcohol test done at the hospital. Lastly, to a good attorney, whether you blow or not is not going to make a difference as to whether they can help you.