Can I take a blood test instead of a breath test?
November 28th, 2009
When a person is arrested for a misdemeanor DUI and taken to the police station the police will usually ask: “Will you take the breath test?” The answer to this question can greatly influence the complications that will arise from the DUI arrest, including length of license suspension and also the mandatory minimum DUI criminal penalties. Some people don’t answer with a “yes’ or “no” but rather with the statement “I would like a blood test.” Here is one of the confusing points about Washington State DUI law and a major difference between how our state processes DUI arrests as compared to the procedures used by other states. In Washington state, you don’t have a choice between breath, blood or urine, as you do in other states. You can either take the breath test or refuse to take it, but saying “I’d rather take a blood test” is legally the equivalent of saying “I’m refusing the breath test.” If you say that, you will be deemed to have refused the breath test, thus incurring a license revocation for at least a year and increased penalties as compared to someone who took the breath test. However, you do have the right to an “additional” test administered on your own, separate from the duty to give breath for police evidential purposes. This additional test is almost always a blood test drawn at a local hospital and it serves the purpose of providing independent evidence to challenge the police breath test. This is an important due process right and the arresting officer cannot take steps to thwart your effort to obtain the independent blood test. Therefore, the short answer is that you can’t “choose” a blood test in place of the breath test the police are asking you to take, but you have a right to get an independent blood test later to refute the breath test. However, as with all things in the law, there are exceptions and caveats. For instance, sometimes the officer has a right to request a blood test, not breath, and you must give a “yes” or “no” to the police blood test. Under this scenario, you still have a right to an independent blood test. Further, believe it or not, if you refuse the breath test by stating that you want a blood test, this will count as a “refusal” despite the fact that the officer then has the right to secure a warrant to force you to give blood, and despite the fact that you were at all times willing to give blood. These rights and more are spelled out in the Implied Consent Law, RCW 46.20.308.It is not exactly a model of clarity and lawyers have been litigating the interpretations of this law for years. After you read this law, it is easy to understand why it is a good idea to exercise the right to speak with a lawyer before making the decision to take a breath test. Our firm, Fox Bowman Duarte, has a lawyer on duty 24/7 to help when called.