Should a Suspect Refuse a Chemical Test For Driving While Intoxicated

Family, friends and clients ask me this question all the time.

Unfortunately, there is no simple or correct answer. Many factors play into the decision to blow or not to blow.

  • Was there an accident involving serious death or physical injury?
  • Whether the DWI charge is a felony or misdemeanor?
  • Whether the test result is likely to be above the legal limit?
  • Does the suspect need their license for work?
  • Is there a plea bargaining policy in the county of arrest?

However, as a General rule and depending on the answer to these questions, here is what I have advised in the past:

If there has been an accident involving death or serious injury – Refuse the test.
In this circumstance, the civil consequences of a refusal are relatively insignificant. Further, in most situations, the Police will obtain a compulsory chemical test which voids the refusal for DMV purposes.

If the DWI charge will be a Felony (prior conviction within the past 10 years) – Refuse the Test.

In this situation, if the defendant is convicted, he will likely receive a license revocation from the court as part of his sentence for at least one year.

If the DWI charge is a Misdemeanor and the person needs to drive – Take the Test.

Here, the person with a high B.A.C. reading will still be eligible for a Conditional License pending conviction for the DWI. While a refusal will mandate the person stay on the conditional license longer than if he had taken the test.

If a person credibly claims to have consumed enough alcohol to blow less then .08 B.A.C. – Take the Test.

In most cases suspects who refuse a chemical test will be charged with Common Law DWI and not with the traffic violation of Driving While Ability Impaired. In this instance, if a person had not consumed enough alcohol to produce a B.A.C reading greater than the legal limit .08 B.A.C., they may actually end up with a higher charge than the person would have in the first instance.

As you can see each case is unique and there are many factors that must be considered before any decision is made. Therefore, you should always consult with an experienced attorney before making this decision.

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