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Whether or not to blow into the alcohol testing machine

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If a drunk driving suspect has alcohol in his or her system, s/he risks a blood alcohol reading over the legal limit of 0.08. If a drunk driving suspect refuses to take a breath or blood test when offered to do so at the police station or jail (not the handheld device on the street, which should always be refused, in the jurisdictions where I practice), here are the sanctions one risks for such a refusal, in the jurisdictions where I practice:

Virginia. Where the defendant has no prior DWI convictions, the magistrate — after finding probable cause that the defendant violated the DWI law — will suspend the defendant’s driver’s license for seven days, whether or not the defendant refused to take the breath test. If the defendant refused to take the breath test after being advised pursuant to the statutory language by the police of the one-year sanction faced for a refusal (and the jail risked for a refusal where the defendant has prior refusal or DWI convictions), the first-offense sanction for so refusing is a civil offense carrying one year of no driving and no restricted driving privileges. Defenses against a refusal charge are that the police arrested without probable cause to believe the defendant was in violation of the DWI law, that the defendant did not refuse (police will sometimes list inability to blow into the machine sufficiently as a refusal, when they should instead then offer a blood test), and that the refusal was reasonable (for instance, the defendant can argue whether the test runs counter to his or her religion, or whether the police followed up the implied consent statutory language with confusing commentary on it).

Maryland: When a DWI defendant refuses to take the breath test or has a blood alcohol content result (through a breath or blood test) of 0.08 or higher, the police officer ordinarily seizes the driver’s Maryland license (if the driver has one) and, regardless of the licensing state, issues a suspension notice that takes effect in forty-five days unless the defendant timely and correctly delivers a hearing request to the Maryland Office of Administrative Hearings. Postmarking the hearing request no later than ten days after the issuance of the suspension notice extends the licensee’s privilege to drive in Maryland until the administrative hearing date. If the administrative law judge finds that the officer had reasonable grounds to believe that the licensee was driving or attempting to drive in violation of the DWI laws, and that the licensee refused the breath or blood test after being properly advised of the sanctions for refusing, for a first-time violation the sanction will be 120 days of no driving on a Maryland license, or in Maryland for an out-of-state licensee, unless the Maryland licensee requests and receives an order allowing driving with the ignition interlock for a year. One convicted for violating the drunk driving laws can be exposed to up to sixty additional days of jail for a refusal.

District of Columbia: Ordinarily, at least with the Metropolitan Police, police will issue a suspension notice to a DWI suspect who refuses a blood, breath or urine test, who has a BAC test result of 0.08 or more, or who police claim was driving under the influence of alcohol or drugs. The licensee has a designated number of days to demand an administrative hearing with the DMV, with out-of-state licensees having additional days to demand a hearing. The DMV seems to require unrepresented licensees to come personally to the DMV to request a hearing –which can be particularly cumbersome to those who live and work far away. As a courtesy to my clients who hire me for their parallel DWI cases, I, on the other hand, am able to satisfy the hearing demand deadline by both emailing and snail mailing a hearing demand to the appropriate DMV personnel. Police often do not appear at the DMV hearings, which makes it all the more worthwhile to demand a hearing, lest one lose one’s D.C. driving privileges for a year for a refusal, or for sixth months if the hearing examiner finds clear and convincing evidence that the driver was driving in violation of the drunk driving laws, and, for the one year suspension), refused any requested breath, blood or urine test. Restricted driving privileges are rarely granted for DMV driving suspensions for DWI cases.

Federal court: For DWI cases in federal court, I usually am dealing with National Park police, Pentagon police, CIA police, and military police for those trying to drive into military installations. At least with park police, a regulation is in place that provides for up to six months in jail for refusing a breath or blood test. In fact, most park police moving violations carry up to six months in jail, even for speeding just a few miles over the speed limit. To expose a person to jail for low-level moving violations is nuts. Because such prohibitions and sanctions are creatures of federal agency regulations, it is all the harder to convince Congress to change the situation.

Whether or not to refuse a breath or blood test in many respects comes down to balancing the arrestee’s interests in beating the DWI charge (in which case a refusal is more advisable) against the arrestee’s interest in preserving his or her privilege to drive. Unfortunately, depending on the jurisdiction and circumstances, taking the breath or blood test might make it more likely that the defendant will lose the DWI case AND get his or her driving privileges suspended.