To Blow or Not to Blow...

In many years of criminal defense, I have yet to have anyone ask what they should tell law enforcement after they get confronted with killing someone (although I would strongly suggest invoking all of your rights and contacting your attorney immediately). Instead, we as criminal defense attorneys (and even our friends who continue to wear the white hats) are shocked if we make it through a party, round of golf, lunch, etc. without the inevitable question...."Should I blow?"

Let's get the sactimonious response out of the way. Drink to your heart's desire, drive with your hair in the wind. Just don't do them in combination. Driving under the influence can be life-altering, expensive, limiting and can pose a significant risk to the safety of the driver and other unassuming drivers they come in contact with. While Kansas may be one of the least friendly states in terms of public transportation, the inconvenience of a cab ride/fare coupled with the reconaissance mission to pick up your car the following morning pale in comparison to the consequences associated with a DUI.

We have heard what has to be close to an exhaustive list of theories from our clients on this topic, generally prefaced with "my friend's lawyer told him...". One would think given the number of friends and lawyers out there who are clearly well-versed on every subtlety of the Kansas DUI laws that every response would be the same, 1 + 1 = 2, and we could store the little nugget of wisdom and move on to more pressing matters hoping to never have to draw on the universal, magic answer. Instead, theories are all over the board, polar opposites at times. Some clients are still shoving pennies in their mouths. (don't do that, they will just check the "slurred speech" box).

So, here it is, print this if you like and fold it up with the Planet Sub card that has had two punches on it for the last three years: If you're stopped for DUI, arrested, taken to the station and asked to blow, you should blow, don't blow, blow and request a blood test if the breath test is >.08. Not helpful? Neither is the one-size-fits-all advice that your pharmacist brother-in-law shouts across the Thanksgiving table every year. The rest of this post will attempt to give you the information you need to at least slap down the brother-in-law the next time the dispute arises.


The most prevalent belief on the blow/don't blow debate has historically been to refuse regardless of the individual's instant situation and circumstance. Kansas legislators apparently didn't care for this approach and modified the DUI law yet again effective July 1st, 2012. Any DUI arrest after that date mandates that the arrested person submit to the Intoxilizer 8000 or face a separate criminal charge of Refusal of a Breath Test. The penalties? The same as the DUI the arrestee is seeking to avoid..[blog in progress to be completed 12/12/12].

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