What Did the Officer Tell You About the DUI Breathalyzer?
Washington State law says that if you are arrested for DUI, you have already consented to take a breath test, also referred to as a breathalyzer. However, the officer will ask you whether you will take the test or refuse it. It is not fair to require someone to make an uninformed decision, so the officer is required to “warn” a driver of the consequences of their decision. The “warning” given by the officer is called the Implied Consent Warning.
What is the Implied Consent Warning?
The Implied Consent Warning is a full page form of legalese. At the time the officer is reading it, you have been arrested, handcuffed and taken to jail. The warning is difficult to understand, especially if you are hearing it for the first time. 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 the decision regarding the breathalyzer.
The essence of the Implied Consent Warning is for a first DUI arrest: If you take the breathalyzer and the reading is .08 or higher, the DOL will administratively suspend your license for 90 days. If you refuse to take the test, the DOL administratively revokes your license for one year. The administrative penalties are more severe if this is not a first arrest for DUI — these penalties are separate from criminal conviction penalties.
Refusal of the DUI Breathalyzer
The Implied Consent Warning does not tell you some important facts: If you refuse the test, you will be prosecuted anyway and your refusal to take the test will be a cornerstone of the prosecutor’s case. Further, If you refuse the test, you can still be compelled to submit to a blood test if the officer applies for a search warrant for your blood.
The warrant process is streamlined and most officers can quickly obtain a blood test search warrant when a driver refuses the breathalyzer. Refusing the test makes the situation worse in several ways:
(1) The prosecution will argue that you didn’t take the test because you knew the reading would be over the limit.
(2) The prosecutor will have a blood test to use as evidence in court.
(3) If convicted in court of the DUI/Refusal, the license suspension imposed by the DOL on conviction increases from ninety days to two years.
Because the DOL takes action against a driver’s license either way — whether the reading is .08 or higher or if the driver refuses the test —it is important for the driver to timely file a DUI Hearing Request with the DOL. This must be done within seven days of the arrest in the scenario discussed in this section. Consult with an attorney immediately after release from custody about DOL notice requirements so that you don’t miss a deadline.
The DOL hearing is an opportunity to fight license suspension. Issues raised at the hearing can include: Was the arrest lawful? Was the driver properly warned of the consequences of taking/refusing the test? Was the driver confused about the options and was that apparent to the officer? Did the officer clarify the warnings or put the driver in touch with an attorney who could clarify? Did the driver in fact refuse the test? Was there an issue with the breathalyzer machine that made it impossible for the driver to blow a valid sample? Were proper procedures followed in administering the breath test?
The law regarding taking or refusing the breath test is one of the most complicated areas of DUI law. This short summary of the law is no substitute for legal advice from an experienced attorney. A driver who is asked to take a breathalyzer 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.
Contact an Experienced Washington DUI Defense Attorney
If you have been arrested for a DUI in Washington State, a knowledgeable and experienced DUI defense attorney can help protect your rights and driving privileges. Offering skilled counsel and unwavering advocacy, the Fox Law Firm PLLC has been successfully defending clients in DUI cases since 1985. Contact Attorney Jon Fox for a free consultation by calling (425) 274-9190.