Pulled Over - Do you Blow?


It’s 11:00 p.m. on a Friday or Saturday night.  You and your spouse enjoyed a delightful dinner at your favorite restaurant with drinks, or a bottle of wine.  You are on the way home – perhaps driving a few miles over the limit – when you suddenly become aware of flashing lights and realize that you are being pulled over by the police.  What do you do?

Bear in mind that, on average, it takes approximately 50 minutes for alcohol to be fully absorbed into the system and the average person would register approximately .02 % percent blood alcohol content after drinking one standard drink, (i.e. a 12 oz beer, 4 oz glass of wine, of 1 ½ oz shot of bourbon, etc.). Alcohol also dissipates at roughly the same rate, so that it takes almost an hour to eliminate the alcohol contained in one drink.   Presumably, the average individual consumed only two beers, or two standard drinks, over two hours or less would have a blood alcohol content of 4%, which is less than the .08%  limit set forth under the Missouri DWI statute. 577.010 RSMo.  Assuming these facts, it seems equally true that the average individual who has consumed only 2 drinks should be able to “safely” take a breath test without blowing over the legal limit. There is even less “risk’ if several hours have passed

Implied Consent …..What’s that?   In most states, Missouri included, all licensed drivers impliedly consent to submit to a chemical test (by blood, breath, saliva or urine) for blood alcohol content as a condition of receiving the “privilege” of operating a motor vehicle. Consequently, there are severe consequences to refusing to submit to a law enforcement officer’s request to submit to a chemical test. In Missouri, failure to submit to the chemical (usually breath) test will result in a one year revocation of driving privileges and evidence of the refusal can be used against the driver in a prosecution in a court of law.  577.020, 577.041 Revised Statutes of Missouri.  Prior to requesting an individual to submit to a chemical test, a law enforcement officer is required to inform the driver that (s)he is under arrest  and the consequences of  refusal to submit to testing.  577.041 Revised Statutes of Missouri.  What the law enforcement officer is NOT required to tell you is that, under Missouri law, you are allowed 20 minutes from the time that you are requested to take the breath test to contact an attorney before making your decision.  If you make a timely request, the law enforcement officer cannot require you to take a breath test until the full 20 minute period has expired.

So, do you blow?  The answer is not always the same. Common sense and a basic knowledge about how the body processes alcohol can sometimes answer your question. If a 180 pound man has had only 2 beers, it is a pretty safe bet that he should not have over .08 percent blood alcohol content.  Things may not always be that simple or clear cut.  In any event, you should always  exercise your right to contact a lawyer prior to making your decision to take, or decline, the breath test.