It happened again last week – a client faced the prospect of losing his driving privileges for a year from the Idaho Department of Transportation because he had refused a breathalyzer, and insisted officers conduct a blood test. His test result was .204%, a level evidencing an "excessive DUI" for which IDOT could suspend him for a year, and so could the court if he was found or pled guilty. There is also a civil penalty from IDOT and the cost of the test. Our only way out was to accept a one year suspension from both the court and the IDOT to run concurrent. 

There is this belief among some Idaho drivers that the blood draw will "prove" they did not have too much to drink before taking control. Wrong. According to a prosecutor I spoke with the opposite seems more likely.

Those former "refusals" are now turning into more "excessive" DUIs because the blood draw is more accurate and harder to defeat in court. So even if you don’t refuse, the impact is the same if the result is a more accurate test reading that happens to be above .20%.

Bottom line – insisting on that blood draw takes the uncertainty out of the result and if it is excessive, there is no room to argue that the machine has a margin of error that may create reasonable doubt.

The safest thing to do here is hail a cab. Your risk if you have been drinking is too much to drive. And if you are going to gamble, I would not suggest opting for the blood draw. The Breathalyzer has inherent risk – the machine itself is subject to error. To beat the blood draw you will likely have to show a contaminated sample or an inept analyst. Neither is very likely. And when was the last time you got a result from a physician relating to blood and then rejected the result because of the inherent unreliability? I don’t know about you but I have been on statins for five years because the doc said my blood showed cholesterol above 230. I never once thought to object to his decision because the results might have been tainted.

And neither will a jury. 

Jurors have experience with blood tests. You are pregnant or you aren’t. You have an infection or you don’t. You need medications or not. So jurors are hard pressed to reject the results. 

Not so with the breathalyzer – nobody except the cops who give it believes it is error-proof.

Again – best action: don’t drink and drive. Second best – don’t demand the blood draw.