Most people know what a DUI breathalyzer is. However, there are two different types of breath tests used in Washington State — the portable breath test and the official breath test — and it’s essential to understand the difference. While the portable breath test is used during the pre-arrest phase of a DUI to determine whether probable cause exists to take you into custody, the prosecution can use the official breath test as a key piece of evidence in court.
What are the Two Breath Tests Used in Washington?
A portable breath test (PBT) is a device used by police to help them decide whether to make a drunk driving arrest. It is typically administered at the roadside where the DUI arrest is made. The PBT should not be confused with the “official” breath test machine – the Draeger 9510 Alcosensor – which is located at a police station.
The PBT is used to determine “probable cause” during a DUI stop for the purposes of taking you into custody or obtaining a search warrant for a blood test. This test is voluntary, and you have the right to decline it under common law. But if you refuse the test, the officer may still take you to the police station if they believe you are under the influence of alcohol and ask you to submit to the evidentiary test using the Draeger.
Importantly, taking a breath test on the side of the road does not mean you have fulfilled the requirements of Washington’s implied consent statute. Although the term “breathalyzer” has not been used in Washington state by police for years, it often still refers to the evidential breath test machine at the police station. Once you are in the custody of law enforcement, you will be asked to take an official DUI breath test using the Draeger 9510 at the station — this machine analyzes a person’s breath sample to detect the level of alcohol in their blood. In contrast with the portable breath test, the results of the Draeger can be used as evidence at trial on a drunk driving charge.
Can the Results of the Portable Breath Test Be Used in Court?
Washington law specifies a protocol for the administration of the portable breath test and the advisements that must be given before it is administered. In the event the officer doesn’t follow the necessary protocol, the results cannot be used in court for any purpose. If the correct protocol is followed, the results may be used in a “probable cause” hearing, but they may not be introduced at a DUI trial. Preventing the portable breath test from being used at trial requires the defense attorney to be alert to the potential use of the portable breath test — they must make a timely objection in pretrial motions (called “Motions In Limine”) before the start of a DUI trial.
Can You Refuse a DUI Breath Test in Washington?
There is a crucial difference between the PBT and the “official” breath test machine. You are not required to submit to the PBT at the side of the road, and there are no penalties for refusing. However, the law specifies that you will lose your license for at least two years if you refuse to take a legally requested DUI breath test on the Draeger 9510 at the police station. It is a serious mistake to confuse the PBT with the “official” test — unfortunately, the difference between the PBT and the Draeger 9510 is often not clearly explained at the time of a drunk driving arrest and processing.
Consequences for refusing to take the DUI breath test at the police station can include the following:
- License suspension for two years and two days in jail for a first DUI
- License suspension for three years and 45 days in jail for a second DUI
- License suspension for four years and 120 days in jail for a third DUI
It can be difficult to know whether you should submit to a DUI breath test. If you refuse a DUI breath test at the police station, the prosecution can use this against you at trial as evidence of your guilt. But if you take the test and the results reveal a BAC of .08% or higher, your license can be suspended, and the prosecution will have crucial evidence against you. It’s vital to speak with an attorney immediately if you are arrested for a DUI who can advise you regarding the best course of action.
Contact an Experienced Washington DUI Attorney
DUI charges can have a devastating impact on your life and livelihood. If you have been arrested in connection with DUI charges in Washington, it’s best to contact an attorney immediately to ensure your rights are adequately protected. Offering reliable representation and aggressive 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) 584-6733.
