What Were You Told About the DUI Breath Test?

Believe it or not, under Washington’s Implied Consent Law you have already consented to the breath test if you drive a car in this state. Simply put, the Implied Consent law says: “Take the breath test or you will lose your license.” Washington’s Implied Consent Law simply says: “If you take the test and blow over the legal limit, you will lose your license.” The consequences for refusing the test or taking it and flunking are different but under either scenario the DOL will seek to automatically revoke or suspend your license independent of the DUI court case. Generally, a person with no prior DUI arrests who refuses to take the test will almost certainly suffer harsher licensing consequences. Suspension/Revocation after flunking the breath test or refusing happens automatically at the hands of the DOL. The only way to have a chance to fight automatic suspension of the driver’s license is to timely send to the DOL (with the $375 fee unless you are indigent,) a request for an administrative hearing. If you took or refused a breath test, the request for an administrative hearing must be sent to the Department of licensing within 7 days after arrest.

Many people mistakenly think that they have satisfied their obligation to blow into a breath test machine by blowing into the portable breath test machine (PBT) which is commonly given by the police officer at the scene of the traffic stop. That is a grave error. The Implied Consent Law is satisfied only if you blow into the “official and approved” Draeger breath test machine which is located at a police station. It does NOT apply to the portable breath test commonly given at the scene of the stop. Refusing to submit to the portable breath test machine will not impact your driver’s license; refusing to submit to the official, evidential breath test at the police station results in serious licensing consequences and may adversely impact the defense of the DUI charge. The Implied Consent “warnings” given at the police station before the Draeger breath test do not explain the differences between the portable breath test and the "official" breathalyzer at the police station as they relate to the Implied Consent law. Many people have lost their licenses because they did not understand this critical distinction.

Because the decision to take or refuse the breath test has serious consequences, the law provides that you must be officially “reminded” of the consequences of your decision. The officer reads a form and you are then asked to make your decision regarding the test.

The form is difficult to understand, especially if you are hearing it for the first time. Keep in mind that at the time the officer is reading it, you have been arrested, handcuffed and taken to jail, probably for the first time in your life. For most people, the shock of the arrest makes it very difficult to appreciate the fine legal distinctions presented by the Implied Consent Warning. It is no surprise that many people under arrest for DUI exercise the right to call an attorney for advice before making any decision regarding the breath test.

The Implied Consent Warning form does not tell you several important facts: If you refuse the test, you will probably be prosecuted anyway and your refusal to take the test will likely be a cornerstone of the prosecutor’s case. Also, if you refuse the test your license will be suspended/revoked and you will have to file proof of financial responsibility (otherwise known as “high risk” insurance) with the DOL, the same as if you had been convicted of DUI. Further, a person who refuses the breath test  can still be required to submit  to a blood test  because many officers will  apply for a search warrant for the blood  if the driver refuses the breath test.

Any person facing the decision to take or refuse the breath test should call an attorney immediately to discuss the consequences of that decision in connection with the specific facts of the case. Police agencies in most jurisdictions have a list of attorneys who are available for consultation by phone even in the middle of the night.

Generally speaking, for drivers with no prior arrests, refusing the breath test brings about harsher consequences than taking the test and flunking it. If a person with no prior dui arrests takes the tests with a result of .08 or higher, the Department of Licensing will suspend the driver’s license for a minimum of 90 days administratively (before trial) and for an additional 90 days (minimum) if convicted of the DUI. The driver may apply for an ignition interlock license which, if processed in a timely manner, can result in there being no interruption in the privilege to drive. There is a catch, however: the ignition interlock license only permits a driver to drive a vehicle that is equipped with an ignition interlock. There are no restrictions as to time or place that the vehicle may be driven, but the individual will be required to blow into the ignition interlock device in order to start the car and periodically while driving.  The law now is a complex matrix of decisions and consequences, and an early  consultation with an experienced DUI defense attorney  is a smart move.

If a person under arrest with no prior DUI convictions and no prior (within seven years) DOL administrative actions takes a breath test with a result near or above the legal limit, which is .08 in Washington, the chances of being convicted are usually increased. If the test result is .08 or higher, the Department of Licensing will suspend the driver’s license for a minimum of 90 days administratively (before trial) and for an additional 90 days (minimum) if convicted of the DUI.

Refusing the breath test can make things more difficult in court. The fact of refusal is admissible in the drunk driving trial. In other words, the prosecutor can argue to the judge or jury that the reason the driver refused testing was because the defendant knew he or she was drunk and would fail the test. Additionally, a test refusal increases the fine and jail sentence of a person convicted of DUI as well as result in additional and longer license suspensions based on the conviction.  Moreover, a DUI decision issued by the Washington State Supreme Court  approved a DUI police procedure whereby a search warrant for the blood of a DUI suspect might be obtained by the police officer if the suspect has refused to submit to a breath test. The case, City of Seattle v. St. John, involved a Seattle DUI squad police officer who obtained a search warrant for the blood of Mr. St. John after Mr. St. John refused to take a breath test. The Supreme Court found no statutory or constitutional bar to a police officer obtaining a blood sample in this manner, even forcibly, pursuant to a search warrant. This means that a driver who refuses to submit to a breath test may find that he suffers the administrative penalty of license revocation at the hands of the Department of Licensing but also that the prosecution will still have an alcohol reading to present to the jury upon trial of the DUI charge.  Further, that same driver  need not have been told that if he refuses the breath test , a search warrant  could be obtained  and blood taken.

The driver is entitled to a hearing before the Department of Licensing to fight the suspension or revocation of the license if a request for a hearing is timely submitted to the Department of Licensing, along with the appropriate fee. Remember, it is critical to make a timely request for a DOL hearing in order to have a chance to save your license from automatic administrative suspension or revocation. Keep in mind, however, that an individual whose license is suspended/revoked by the Department of licensing may apply for an “ignition interlock license” which, depending upon the timing, can result in there being no interruption in the ability to drive so long as the personal vehicle being driven is equipped with an ignition interlock device.

The law regarding taking or refusing the breath test is one of the most complicated areas of DUI law. This short summary cannot substitute for legal advice from an experienced attorney. Any person who is asked to take a breath test by a law enforcement officer should ask to contact an attorney immediately.   In any event,  after a DUI arrest it is  always wise to  consult with an experienced  DUI attorney.