“To Blow or Not to Blow?” is the most frequently asked question of lawyers who defend people accused of driving while intoxicated. Of course the question includes within its scope the question of whether a driver should consent to any of the tests covered by Missouri’s implied consent law, breath, blood, urine, and saliva. The knowledgeable lawyer in this field knows there is no answer that fits every person’s situation. The most common test requested by the officer is that the “suspect” take a breath test to determine his blood-alcohol content (BAC), though it has become more common of late for an officer to request a blood test, which entails taking the suspect to a medical clinic or hospital for a qualified person to take a blood sample. If the driver suspected of driving under the influence (which for purposes of the law is identical with driving while intoxicated), takes the breath test and the result is considerably lower than what the officer would have expected considering his observations of the driver, the officer may request that the driver take a blood test as well. The officer may request the driver to take any two of the statutorily authorized test, but no more than two.

The driver at the time of the initial stop must pay close attention to officer’s questions about whether the driver will consent to take certain tests. Almost always the officer will first ask the driver if he will agree to do some field sobriety tests for the officer (FSBT). These tests will include certain physical coordination tests like the walk and turn test and the one-leg stand tests. Included among these tests in many instances will be the preliminary breath test where the officer requests the driver to blow into a hand-held device to gather physical evidence that the driver has imbibed an alcoholic beverage. There is no penalty for refusing these tests, but neither refusal is an advantage to the driver. (See blog of 11/2/12). The officer, when asking the driver whether he will take the preliminary breath test, may, if the driver refuses, THEN ask the driver if he will take the breath-test at the station, and at this point, the officer should read the implied consent law to the driver. Normally, this question as to whether the driver will take the breath-test at the station is not asked until the driver is arrested and is at the station; however, we have seen instances where the officer asks that question, or says he did, while at the site of the initial stop.

Once the driver is at the station or county jail and the arresting officer has read to the driver Missouri’s Implied Consent Law to him, the officer puts the question to the driver: “I have probable cause to believe that you were operating a motor vehicle while under the influence of alcohol. I want you to give a breath sample into the breathalyzer. Will you give that sample?” (Assuming the officer believes the driver to be intoxicated by alcohol rather than drugs.) Now the officer has formally and correctly triggered the Missouri Implied Consent law that obligates the driver to either consent to take the test requested or refuse. The officer has no obligation to give the driver legal advice and will not do so; however, the law says that if the driver requests to call an attorney, the officer must give the driver twenty minutes within which to consult with a lawyer. The law does NOT require the officer to notify the driver that he or she can have twenty minutes to contact an attorney for advice, the officer is only obligated to honor such a request. After the twenty minute period has expired, whether or not the driver has been able to consult with counsel, the officer will tell the driver it is now time to take the test. The driver cannot refuse because he was unable to contact a lawyer.

Generally, assuming the driver has no previous pleas of guilty or convictions for an alcohol/drug related driving offense, and no previous alcohol-drug related suspensions or revocations, he is going to ultimately be better off taking the tests requested by the officer. If the driver takes the tests and the tests show that his blood-alcohol is under eight-hundredths of one percent by weight, and that result is not wholly inconsistent with the officer’s observations so that a second test is not administered, the officer could very well decide neither to issue a summons nor request an arrest warrant for the offense of driving while intoxicated; or, if the officer does decide to issue the summons despite the low test result, the prosecuting attorney may well decline prosecution. If the prosecutor charges the driver despite the low BAC, the driver has a powerful tool with which to persuade the trier of fact that he is not guilty. If the driver’s BAC proves to be in excess of the eight- hundredths of one percent limit, then his driving privileges will be suspended for a period of 90 days (as opposed to a revocation for one year for a refusal), and will be eligible to apply for a limited driving permit after 30 days (as opposed to after 90 days for a refusal).

The astute reader will pick up on the use of the word “Generally” with which I commenced the above paragraph. As with most things in life, there are going to be exceptions. Under the scenario described above, if the driver tests over the legal limit, he is about 99% assured that he will lose his driver’s license for the prescribed period. This “administrative suspension” is handled entirely by the department of revenue. Though the driver is entitled to a hearing on the matter, the attorney prosecuting the suspension for the department of revenue is a department of revenue attorney and the administrative officer deciding the issue of suspension is likewise a department of revenue attorney. As a practical matter, provided the officer operating the machine is properly certified, all the department of revenue has to show at the hearing is that the driver was operating a motor vehicle and at the time his blood alcohol level was at a level of eight-hundredths of one percent or higher, or that the blood test-salvia-urine test showed the driver to be under the influence of a drug.

By refusing the test, the driver is able to place his driving privileges in the hands of the local prosecuting attorney who will in most cases be representing the State on the forthcoming driving while under the influence/intoxicated charge rather than in the hands of the Department of Revenue. Because the driver’s attorney on the DWI charge will also be representing him on the Refusal matter (there is a vehicle by which the driver can challenge the officer’s claim that the driver knowingly refused to consent to the requested test), the driver’s skilled lawyer may very well be able to negotiate a “package” deal with the local prosecuting attorney that will entail the driver’s driving privileges not being revoked or suspended. The driver is able to obtain a temporary driving permit while these negotiations are proceeding. The prosecutor, in exchange for agreeing that the driver’s driving privileges will not be revoked, will almost certainly drive a harder bargain in dealing with the DWI offense than he would have had the driver taken the requested test and had his driving privileges suspended by the department of revenue.

The next blog will cover what conduct on the part of the driver may be considered a refusal as well as the dilemma of drivers who have had a previous alcohol/drug related driving offense.

**DISCLAIMER: This article is intended to provide general information and is not and should not be taken as specific legal advice or as creating an attorney/client relationship with any reader. Any specific situation requires specific legal advice. Anyone facing a legal problem should contact an attorney for specific legal advice and should not rely solely on any information contained in this article. An attorney licensed in the state of Missouri writes all articles and all legal information discussed addresses the law as it stands in Missouri at the time of writing. Not only may there be significant differences in how the law would be applied in Missouri versus other states, the law is not static and can change over time. Nothing in this article is intended to have any relevance outside of the state of Missouri and should be taken as general information only, not legal advice.