Can You Refuse a Breathalyzer Test?

Policeman Doing Driver Alcohol Test Using Breathalyzer

Under Washington State law, anyone who operates a motor vehicle is deemed to have given their consent to take a breath test upon arrest for a DUI. While a driver has the right to refuse a breathalyzer, it’s important to understand that this can come with consequences. Notably, there are serious administrative penalties for refusing a breath test in connection with a DUI arrest — including revocation of your driving privileges. The penalties imposed by the Washington Department of Licensing (DOL) are separate from the impact a breath test refusal can have on your criminal case in court.

What is the Implied Consent Warning in Washington?

The implied consent laws in Washington are extremely nuanced and can be hard to understand. Under Washington’s DUI law, law enforcement is required to inform you of your right to refuse a breathalyzer. They must also advise you regarding your right to have additional tests administered by any qualified person you choose.

The Washington DUI statute specifies that an officer must issue you the following warnings before you are administered an official breath test:

  • If you refuse to take the test, your driver’s license, permit, and driving privileges will be revoked or denied for a period of at least one year; and
  • If you refuse to take the test, your refusal may be used at criminal trial; and
  • If you submit to the test and the test is administered, your driving privileges will be revoked, suspended, or denied for at least 90 days if your blood alcohol concentration (BAC) is .08% or more.

If the driver is under 21, the officer must inform them that if they submit to the test, their driving privileges will be revoked if their BAC is .02 or more.

For most people, the shock of a DUI arrest makes it very difficult to comprehend the fine legal distinctions presented by the implied consent warning. This is why you should consider exercising your legal right to call an attorney for advice before making any decisions regarding the breathalyzer.

What Happens if You Refuse the DUI Breathalyzer?

Knowing what you should do after being given the implied consent warning can be overwhelming, especially if you are unfamiliar with the legal process associated with DUIs. The warning does not inform you of all the facts — if you refuse the breathalyzer, you can be prosecuted regardless, and your refusal will be the cornerstone of the prosecution’s case. Further, if you refuse to take a breath test, you can still be compelled to submit to a blood test if the officer obtains a search warrant for your blood. The warrant process is streamlined, and officers can usually secure a search warrant quickly when a driver refuses the breathalyzer.

Refusing the breathalyzer can be detrimental to your situation in several ways. For example, the prosecution will argue that you didn’t take the test because you knew the reading would be over the legal limit. In addition, the prosecutor will also have a blood test to use as evidence against you in court. It’s also vital to be aware that if you refuse the breath test and are subsequently convicted in court of a DUI, the license suspension penalty imposed by the DOL increases from 90 days to two years.

Specifically, the DOL will take administrative action against your license in two scenarios: 1) your BAC reading is .08 or higher or 2) you refused the breathalyzer. It is important to timely file a DUI Hearing Request to avoid mandatory license suspension. This must be done within seven days from “receipt of notice,” which is usually the date of the arrest. It’s best to consult with a DUI attorney immediately after release from custody regarding the DOL notice requirements so that you don’t miss a deadline.

The Difference Between the Preliminary Breath Test and the Official Breath Test

Most people are familiar with the breath tests that are conducted as part of field sobriety tests during a DUI stop. However, it’s essential to understand the difference between the preliminary breath test that is administered on the side of the road and the official breath test at the police station. The preliminary breath test is voluntary, and you have a common law right to decline it.

The preliminary breath test is not to be confused with the breathalyzer test you will be asked to take upon arrest. The breath test you are asked to take once you are in police custody is covered under the implied consent law — and failure to submit to it will result in being subjected to a blood test to determine your BAC. In contrast, the preliminary breath tests are often used to establish probable cause for a DUI arrest or to obtain a search warrant for a blood test.

Participating in the preliminary breath test does not constitute compliance with Washington’s implied consent statute. Significantly, the preliminary breath test results cannot be used on their own to determine that a driver’s BAC exceeded the legal limit, beyond a reasonable doubt.

Contact an Experienced Washington DUI Attorney

If you’ve been arrested for a DUI, it’s crucial to consult with a knowledgeable DUI attorney who can advise you regarding your legal rights — and build a strong defense in your case. Providing skillful representation and aggressive advocacy, the Fox Law Firm PLLC has been successfully representing clients throughout Washington in DUI cases since 1985. Contact Jon Fox for a complimentary consultation by calling (425) 584-6649.