A few days ago the Division One Court of Appeals in WA State recently came down with a ruling that was not favorable to defendants facing a DUI charge in WA. In my opinion this ruling will result in one more unfair advantage Prosecutors will have at their disposal to use in the conviction of people charged with DUI. I anticipate this being appealed to the State Supreme Court, but as of now the refusal of field sobriety testing can be used to show a consciousness of guilt.

So what does that exactly mean? A consciousness of guilt. This is not novel or new as DUI Defense Attorneys have been dealing with this with theory in regards to breath and blood testing. Essentially when it came to the refusal of breath or blood testing during a trial a Prosecutor could argue to a jury that the reason a defendant declined a breath or blood test was because they had a “guilty conscious” or in other words they knew their blood alcohol level was going to be higher than the legal limit so they declined that test because they were going to fail.

Now prior to this recent ruling this argument could only be made when it came to breath or blood tests. So if a person declined the field sobriety tests during a DUI investigation although that evidence of the refusal could be admitted it was not allowed to show the “consciousness of guilt” theory. In other words the Prosecutor couldn’t argue the driver declined the field sobriety tests because they knew they were going to fail. But now that is not the case and a Prosecutor can argue they didn’t take the test because they knew they were guilty.

Here is my issue with this ruling. Although introducing “consciousness of guilt” on a breath or blood test refusal sucks, I kind of get it. Heck when a driver in WA gets their drivers license there is an implied consent that they will take the test and if they don’t that refusal will be used against them in trial. The driver is informed of this prior to making that decision and they make that decision knowing and intelligently based on that understanding.

However when it comes to field sobriety testing it is completely voluntary. Heck their admissibility depends on the tests being taking voluntarily. And from what I hear the police are not going to be advising people the refusal of these tests can be used against them in a criminal trial. So now if a person exercises their right to decline these voluntary tests and they go to trial. The Prosecutor can turn around and say they declined these tests despite being voluntary because they were drunk and they knew they would fail. I think this is a flawed reasoning and it should be interesting to see what happens at the Supreme Court level.

So what is my advice as a Seattle DUI Attorney? If you’re being investigated for a DUI in WA and the investigating officer asks you to take these field sobriety tests. You should still politely decline them. Although what I would suggest is perhaps changing how you do that.

I have always preached that prior to answering any questions or doing any tests you inform the investigating officer you wish to speak with an attorney prior. 99.9% of the time they will say you’re not under arrest and they are not going to put you in contact with an attorney. So just inform the Officer that you don’t feel comfortable doing anything without first speaking with a lawyer. At least this way if you end up in a trial and the Prosecutor tries to play the “consciousness of guilt” card it may not have the same effect.

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About the author: Matthew Leyba is a DUI Lawyer in Seattle, WA. He is rated as a perfect 10 out of 10 by Avvo.com when it comes to DUI Defense. He has also been repeatedly named a Rising Star in the field of DUI Defense by the Seattle Met Magazine, an honor only 2.5% of all lawyers receive.