Can I Refuse a Breathalyzer Test?

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Oct 24

Baker, Lewis, Schwisow & Laws

Can I Refuse a Breathalyzer Test?

by Baker, Lewis, Schwisow & Laws

Can I Refuse a Breathalyzer Test?

Which States Have the Highest Rate of Refusal for Breathalyzer Tests?

Across the United States, the laws concerning the refusal of a Breathalyzer test if you are stopped for suspicion of DUI, vary considerably. A National Highway Traffic Safety Administration (NHTSA) report in 2007, detailed the results of studies done on the rate of Breathalyzer refusals over the past decade. In 2005, Washington State ranked a bit below average with a 16 percent Breathalyzer refusal rate. The highest rate was in New Hampshire, at 41 percent, and the lowest rate was in Delaware at 2 percent. Typically, the highest refusal rate came from first-time offenders, many of whom were unaware of the penalties associated with refusing the Breathalyzer test.

Can a Police Officer Forcibly Draw My Blood?

In the years since this study was conducted, some states resorted to forced blood draws for those who refused a Breathalyzer test. This behavior went to court and in 2016 the Supreme Court ruled police could not forcibly draw blood from a DUI suspect without a warrant. Because the court considers breath tests much less invasive, Breathalyzer tests can be administered without a warrant—however the suspect does not have to participate.

Washington, as well as all other states, have Implied Consent Laws in place, which essentially state that a person who has a driver’s license is considered to have consented to a blood or Breathalyzer test if arrested for DUI. That being said, a person nonetheless has the right to refuse a Breathalyzer test, but will likely suffer consequences for doing so.

Washington Consequences for Refusing a Breathalyzer Test

If you refuse to take a Breathalyzer test at the police station in the state of Washington, you will have your license suspended for a mandatory period of two years and you will spend a mandatory two days in jail. For a second DUI offense, a refusal will garner you three years mandatory license suspension and a mandatory 45 days in jail. If you refuse a Breathalyzer test for a third DUI offense, you will lose your license for four years and you will spend a mandatory 120 days in jail.

DUI offenses are considered a gross misdemeanor in the state of Washington and will go on your criminal record as well as your driving record. As far as license suspension, you will receive less suspension time if you submit to a Breathalyzer than if you refuse. As an example, compared to a two-year suspension for a first-time offense refusal, if you submit to a Breathalyzer your license will be suspended for 90 days if your BAC is under .15 and one year if your BAC is over .15.

For a second offense, the numbers are closer—if your BAC is under .15 your license will be suspended for two years, and if your BAC is over .15 your license will be suspended for 900 days—which is only a bit less than the three years for a refusal. For a third DUI refusal, if your BAC is under .15 your license will be suspended for three years, and if your BAC is over .15, your license will be suspended for four years—the same as for a third offense refusal. So, as far as license suspension goes, there really is little benefit to refusing to take a Breathalyzer test.

Isn’t Agreeing to a Breathalyzer Providing the State with Evidence Against You?

The other side of the issue is, that to prove your DUI charges when you have refused a Breathalyzer test, the prosecutor must prove your driving was affected by your level of impairment. Your attorney may be able to offer arguments as to why you refused the Breathalyzer test (confusion or a medical issue) or may be able to argue there is insufficient evidence to definitively prove impairment.

Once you refuse to take a breath test, the police officer must provide you with notice of the state’s intent to suspend your driver’s license, and information on how you can request a hearing to challenge that suspension. While an officer cannot make you take a breath or blood test in most circumstances, there are two exceptions: If you were involved in an accident where another person was seriously injured or killed, or you were unconscious, due to the accident, then your agreement to take a blood test is not required. The best thing you can do, once you have been charged with DUI is to immediately contact an experienced Washington DUI attorney.

Have you or someone you love been charged with a DUI? Contact the Experienced Criminal Defense Lawyers at Baker, Lewis, Schwisow & Laws

The expert defense team at Baker, Lewis, Schwisow & Laws, PLLC vigorously defend the rights of individuals facing a multitude of charges in Seattle, Bellevue, and Kirkland. Contact us today at 206.209.0608 or fill out our online contact form to get more information or to get a free case review!



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