It’s a question that many drivers have asked themselves: if I’m stopped and suspected of drunk driving (DUI), should I take the breath test?
Ideally, you’ll have thought about your answer beforehand because, while you might have a friend who’s a lawyer, or even have a lawyer on speed-dial, there’s a good chance that you won’t be allowed to make the call when you’re stopped on the side of the road at 1 a.m. on a Saturday morning, and even if you do, the lawyer may not be there to answer.
Before we get to whether or not you should take the breath test, it’s helpful to first define what test we’re talking about.
If someone in Washington state is stopped while driving and the police suspect the driver is under the influence of alcohol, the police can require that the driver submit to an optional roadside breath test, called a Portable Breath Test by law enforcement and the courts. The driver blows into a machine that measures the amount of alcohol in their breath and uses that measurement to determine whether the driver’s breath alcohol content, or BrAC, is at or below the legal limit, which in Washington is .08%.
Regardless of whether you do or do not take the optional roadside test, if the officer believes you are under the influence of alcohol you will be arrested and taken to the police station, where you will be asked to submit to an evidentiary breath test.
Drivers are "required" to submit to a BrAC test under Washington’s implied consent law, which means that a person who operates a vehicle within Washington state is considered to have consented to a breath test if they are arrested for suspected DUI.
If you refuse to take the test, which you can do, you are subject to a license suspension and will face enhanced penalties if you are convicted of a DUI. For example, a person who is arrested for a DUI for the first time will only face a 90-day license suspension from the Washington State Department of Licensing (DOL) if they submit to the evidentiary breath test at the station. If the driver refuses to take the breath test, the driver is facing a 1-year license revocation.
It is important to note whether the police officer explained which test is an evidentiary test and which test is optional. If the officer did not explain that the first test is optional but the second test is mandatory, this can be used as a defense to the DUI charge.
The officer is also required to tell you that you can refuse the test, but that if you refuse the test your license will be suspended for 1 year and that evidence of your refusal can be used in court. Note: if you refuse the breath test and have a prior administrative sanction within 7 years, you will be facing a 2-year license suspension. Also, even without a prior DUI offense, a DUI-refusal conviction carries with it a 2-year license suspension. The penalties go up if an individual has any "prior offenses" within 7 years.
Before making a decision to take or refuse an evidentiary breath test, you should always exercise your right to consult with an attorney. The local public defender's office will have an attorney on-call who can answer questions specific to your case. Also, the public defender can be a valuable witness to evaluate your speech and attitude at the time of the arrest. The public defender will advise you to not answer any of the arresting officer's questions and if you should or shouldn't take the test. Remember not every case is the same. While taking the test makes sense for most people, there are always exceptions to the rule.
Even if you refuse the breath test it does not mean the arresting officer cannot get your blood alcohol level via a blood test performed pursuant to a valid search warrant. If the officer obtains a search warrant, there is nothing you can do to prevent the officer from obtaining a blood sample from you. In many cases, a blood test reveals other substances in a person's body besides alcohol that can cause impairment.
If you were arrested and charged with a Washington DUI, you will need to deal with not one, but two different cases. The first is the criminal case, while the second is with the Washington State Department of Licensing (DOL). The cases run independently, so even if your court case is dismissed, you still risk losing your license.
If you wish to challenge the license suspension, you must request a hearing with the Department of Licensing within 20 days of your arrest. Note: this timeframe will change to 7 days in 2019. If you do not request a hearing the suspension will become effective 60 days after the date of your arrest.
Once you request the hearing the DOL will set a hearing date. The hearing will be conducted by phone, and the hearing examiner will consider: 1) whether you were lawfully arrested; 2) whether the officer had probable cause to believe you were under the influence of drugs or alcohol; 3) whether you were properly advised of your implied consent rights; and 4) whether your BrAC was over the limit or you refused the test. Under current law, there is no licensing hearing for an individual who voluntarily consents to a blood test. If an officer obtains a search warrant for a blood test subsequent to a refusal, the driver will face a minimum 1-year license revocation from DOL and have to deal with blood test evidence in a criminal prosecution.
It is wise to have a Washington DUI defense lawyer represent you at the DOL hearing as well as the court case. Your lawyer can subpoena the arresting officer and other witnesses for the hearing, and can question witnesses and present evidence that could influence the hearing officer’s decision.
Just because you refuse the breath test does not mean that you cannot or will not be charged with and convicted of a DUI.
The police officer and prosecutor will use other factors, such as the way you were driving, whether there was an odor of alcohol coming from your or the vehicle, whether your eyes were glassy or bloodshot, whether you slurred your speech, and your performance of Field Sobriety Tests (FSTs) as evidence to prove that you were intoxicated. Also, as stated above, the officer may obtain a search warrant to obtain a sample of your blood to determine your blood alcohol level, THC level, or if there are other drugs present in your system.
A conviction for a Washington DUI is a gross misdemeanor, punishable by a license suspension, up to 364 days in jail, a fine of up to $5,000, mandatory installation of an ignition interlock device (IID), probation, electronic home monitoring (EHM), and high-risk insurance. DUI probation is a monster where many violations (even some infractions) carry mandatory 30 days of confinement and 30 days of license suspension.
Consider how the penalties differ based on your BrAC level, whether it was a first, second, or third offense, and whether you refused the evidentiary breath test. Below you can see the mandatory minimum jail time and license suspension for a DUI conviction:
If you or someone you care about is facing Washington drunk driving charges in Skagit County, Island County, or San Juan County, including Mount Vernon, Anacortes, Oak Harbor, Whidbey Island, or Friday Harbor contact Washington DUI defense lawyer Justin Campbell at the Campbell Law Firm.