Should You Blow?

traffic stop

One of the questions we’re asked most frequently from people who have been charged with a DWI is, “should I have blown?” One of the questions we hear most often from prospective clients is, “should I blow?” There is no bright-line rule on whether or not you should blow; there are legal implications either way. This article will seek to explain the situation in which you may be asked to provide a breath sample and what could happen should you choose to do so, or refuse.

First, it’s important to know that in most common DWI situations there may be two different opportunities to blow into a machine. The first opportunity will be roadside into a Portable Breath Testing instrument or PBT. This is usually a small handheld device with a plastic straw that the officer will ask you to blow into. The results of the PBT are only partially allowed to be used as evidence against you. This means that the officer will only be able to tell the Judge or Jury that your test was positive for the presence of alcohol or negative for the presence of alcohol, not the actual number. The second opportunity will only arise after you have been arrested. This will happen at some kind of law enforcement facility via a machine commonly referred to as the ECIR II or “Intox machine”. This is the result that will most likely be fully admissible at court, so the Judge or Jury will hear this number.

Should I blow in the PBT?

  • There is no standing rule for whether or not you should blow in the PBT. Generally, North Carolina law prohibits an officer from testifying about the result of a PBT, other than to report a positive or negative result. A positive result is any result higher than .08 while a negative result is any result lower. In order to have a valid result, the Officer must take two readings at least five minutes apart that are within .02 of each other.
  • Refusal to blow into the PBT is not the same as refusing to submit to the final chemical analysis. Once charged with a DWI you should know that while the refusal to submit to the PBT can be used against you in court, it will not be counted as a refusal for DMV purposes.
  • In North Carolina, the PBT is often used to confirm probable cause. This means that when an officer is making a determination about whether or not to arrest someone for a DWI they look at all of the evidence before them and can only use the PBT to confirm whether or not they have probable cause.
  • It is important to know that an exception to the rule prohibiting the disclosure of the results of a PBT in trial is when the driver is under the age of 21. In such instances, the officer may rely on the PBT for more than just probable cause and instead use the reading to determine guilt.

Should I blow into the ECIR II?

  • Again, there is no bright-line rule for whether or not you should blow into the machine known as the ECIR II. This is the big machine usually either at the jail or at the police department itself. There are, however, some important things to consider when making this decision:
    • Refusal could end up in a license revocation even if you beat the DWI. Even if you are found not guilty or the DWI case against you is dismissed. That does not mean the DMV cannot use the refusal against you for the purposes of a license suspension. If you refuse to submit to the chemical analysis the DMV can suspend your license for a period of up to one year.
    • The refusal can be used against you in court. Even though it is your right to refuse such analysis, the judge will hear how you refused to submit to the test and make their determination accordingly. While this is not typical, a refusal is looked at by many judges as a negative.
    • Once you refuse to submit to the ECIR II, the officer can use that refusal as part of the basis to obtain a search warrant to force you to give a blood sample. This, however, does take up time which could affect high or low your result is.
    • Blood Alcohol Content isn’t the only way to be found guilty of a DWI. In North Carolina, there are several ways that the State can prove a DWI. The most notable and well-known is the .08 legal limit. However, if the state can prove appreciable impairment, they may not need the results of a chemical analysis.

In the end, the decision on whether or not to blow is a personal choice. Each decision should be based on the unique facts and circumstances of your individual circumstances. If you have been stopped for a DWI or if you have questions about the chemical analysis, please contact one of the knowledgeable Criminal Defense attorneys at Jetton & Meredith.