Posted: August 16, 2015

I cannot be charged with DWI if I did not Blow, right?

A question that I get often is regarding whether or not a person should “blow” following an arrest for driving while intoxicated (DWI) in Louisiana.  Typically, this question comes from someone who has not yet been arrested and the advice I always give them is simple – DON’T DRINK AND DRIVE!  Now, I have defended clients who have been arrested and refused to blow, and their question is always, “Since I did not blow over a 0.08 BAC, can I be convicted, or can they even charge me?”  The answer to these questions are quite simple – yes and yes.

What I first tell prospective clients is that the law in Louisiana is not driving with a particular blood alcohol content, but whether or not you were impaired, due to the influence of alcoholic beverages or drugs, while driving.  Louisiana Revised Statute 14:98 describes the crime of  driving while intoxicated as follows ”…the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exists: (a) the operator is under the influence of alcoholic beverages. (b) The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood….” This means that even if you blow less than 0.08 or not blow at all the State can still charge you .  They can do this because your BAC level is not the only evidence of your impairment due to alcohol or drugs that may be presented at trial.

A significant part of the prosecutor’s case will likely be the video that the arresting law enforcement agency took of your stop and arrest.   This video can be a persuasive piece of evidence that the State can present to a judge or a jury, because it is a video of the actual offense and they get to see the client driving and performing the field sobriety tests. The first part of these videos generally will show the law enforcement personnel following the vehicle, and show  the vehicle demonstrating some form of impairment including but not limited to swerving, making a bad turn, or an accident.    The next component of the video will be your interaction with the arresting officer.  Most clients and the general public are familiar with the existence of the Field Sobriety Tests, if not the actual specifics of the tests, and most know that these tests are used to determine whether or not an individual is impaired.  However, your interaction with the arresting officer is not limited to those Field Sobriety Tests. The judge or jury will also get to see you talk (slurred or coherent) and how well you understand the directions from the officer.  Additionally, what you say to the office will be on the video as well.  For example, if you told the officer you had two drinks, and then refused to blow later, the officer will still have evidence that you drank prior to operating a vehicle. This is one example of how the State can charge an individual who has refused to blow, or blew less than  0.08 BAC.  Additionally, the cases in which a defendant’s impairment is based on drug use, the refusal to blow becomes less relevant and the evidence described, along with other evidence in the possession of the State,  is what is used to prosecute the case.

Further, Louisiana law allows for the suspension of your driver’s license for a year for refusing to blow.  To be clear, the suspension is for the simple act of refusing to blow. La. R.S. 32:667 B(2)(b).  A defendant does have a right to challenge this through a hearing, but must do so quickly following an arrest in order to preserve their claim.

            If you have been arrested for DWI and you refused to blow,  or blew less than 0.08% bac, or if  you blew over 0.08% bac please give my office a call, because there are defenses you may bring on behalf of your case.   Please remember the best defense to a DWI is to simply not drink and drive. 

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