Refusing a Breathalyzer
Implied Consent Laws
Washington's "implied consent" laws specify that all motorists agree to take a breath test if lawfully arrested for driving under the influence. In addition to any DUI penalties, a driver who refuses testing will have his or her license revoked for two years for a first offense, three years for a second offense, and four years for a third offense. Prior offenses include both DUI convictions and test refusals.
Every driver in the State of Washington impliedly consents to providing a breath or blood sample after being arrested for DUI. Failure to provide such a sample after a lawful request is known as a “refusal.”
For a Washington Court or the Washington Department of Licensing (DOL) to find that you have refused to provide a properly requested breath or blood test, several things must be proven. First you must have been read or been allowed to read what are known as your implied consent warnings. These can also be found in RCW 46.20.308. It is important to note that behavior apart from saying, “I refuse” can constitute a refusal. An officer may construe a refusal in cases where a person delays or pretends to blow into the breath tube. This is known as a constructive refusal and while it may be harder to prove than an actual refusal, Washington DUI law does recognize it as a refusal, nonetheless.
What Is the Legal Limit for Alcohol?
According to state law, a blood alcohol content (BAC) of 0.08 percent or higher, within two hours of driving, meets the definition of “driving under the influence.” BAC is a measurement of the amount of alcohol present in your bloodstream, as measured by a blood or breath test. BAC increases as a person continues drinking, and gradually decreases as the body metabolizes the alcohol.
Evidence of BAC over the legal limit is not required to convict a person of DUI, however, as state law only requires that a person be impaired by drugs or alcohol. Without BAC test results, or even with a BAC below the legal limit, prosecutors can use other evidence, such as witness testimony regarding unsafe driving.
Consequences of Refusing
License suspension. When a driver refuses testing, the officer is supposed to report the refusal to the Department of Licensing. The department will then suspend the driver’s license for two years. If the driver has a prior refusal or DUI conviction within the last seven years, the suspension will be three years. And if the motorist has two prior refusals or convictions within seven years, the third offense will result in a four-year suspension.
Restricted license. Generally, the suspended driver can immediately request a restricted license after installing an ignition interlock device (IID). This license authorizes the holder to drive during the suspension period but only with an IID.
Evidentiary uses. In the criminal case, the prosecutor is allowed to tell the jury that the driver refused testing. Prosecutors often argue that a refusal is evidence of the defendant trying to conceal impairment.
Criminal charges. A driver who refuses testing might face increased penalties if convicted of a DUI in criminal court.
Do I Have to Do a Breath or Blood Test?
You are not required to submit to a breath test or a field sobriety test, as the U.S. Constitution protects you from offering evidence against yourself. If you refuse such a test when requested by a police officer, however, the officer may arrest you and seek a warrant to perform a breath or blood test. Because of the way the body breaks down alcohol over time, police treat this sort of issue with urgency. Some law enforcement officers around the country have asserted a need to draw blood from a DUI suspect without a warrant, but the U.S. Supreme Court is considering whether this is permissible.
If you are facing criminal charges, it is crucial to have effective representation immediately. An alleged DUI charge does not mean Guilty! Even if you think the facts of the case aren’t in your favor, having the best possible criminal representation can be the difference between jail time and probation, or having your record destroyed with an avoidable felony or misdemeanor conviction. At Snohomish Law, our criminal defense attorneys give you time and attention, to ensure you are treated fairly under the criminal justice system.
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