Which Test Is More Defensible in a DWI Case, the Blood Test or the Breath Test?

Interviewer: Have you found that breath tests are easier to defend the case than blood or vice versa?

Two Breath Tests Administered within 60 Minutes May Each Produce a Different Result

Gary: The thing about like breath tests is if you’re above a .8 you probably will be convicted anyway, but if you’ve got a close breath test you have some defenses. Typically, two breath tests are administered. So you have two different basic parameters to look at. For example, when a driver is pulled over, they take a breath test.

The first time they blow they blow a .08 right on the nose. The second time they blow they blow a .081, so their blood alcohol level is going up. So, were they intoxicated when they produced the result of .8, which was when they were driving an hour earlier?

My argument would be no because if you look at the breath test result, their alcohol content is going up at the time. So does that mean at the time they were driving they were not presumed to be intoxicated, when the blood alcohol content was actually lower?

Can the Driver Choose Which Test to Take?

Interviewer: Are people allowed to choose between the breath test and a blood test?

Gary: Yes, you can request a blood draw and say I refuse the breath test, I just want to get my blood drawn and they’ll do a blood draw on you. Or you can agree to take a breath test. All individuals have a right to choose between a blood draw and a breath test.