Please forgive me for the lawyer in me coming out but why would any attorney who is worth anything even consider answering this question at 1 or 2 o’clock in the morning from a phone call 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 to help the would-be client.  Further, why would an attorney risk the possibility of being sued for providing such information to a person who has neither paid his fee nor signed a contract?

However, putting that aside such potential issues a wise attorney may answer the  hypothetical question 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? All of these questions factor into the ultimate answer.  However, please understand if you refuse to take such a test it can’t 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 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.

But getting back to the specifics of the question, “Should You Blow?” Even the people in charge of Missouri‘s breath test 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. However, 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.