What happens if you refuse the breath test following a DUI arrest
A few days ago I blogged about what happens if a person arrested for a DUI in Washington State takes the breath test at the police station. To follow up on that. I now answer the question what happens if you refuse to take the breath test following a DUI arrest. In my opinion as a DUI Attorney in Seattle some good will happen, and some bad will happen. So here you go.
If you get arrested for DUI first and foremost ask to speak with a lawyer immediately. The law is constantly in flux regarding DUI cases here in Washington State. And this can vary from County to County to Court to Court. For example last fall if you refused the breath test following a DUI arrest in King County there was probably a good chance evidence of that refusal could have been thrown out in Court. A DUI Attorney would have known than and could have advised the driver arrested for DUI of that particular issue.
So what happens if you refuse the breath test. First you face a minimum of a 1 year drivers license suspension or loss of privilege to drive in WA by the Department of Licensing. Just like if you take the breath test and you’re over the legal limit. If you refuse to take the breath test then you face an administrative action from the DOL. Regardless of what your actual alcohol level was.
Secondly you face a minimum of a 2 year drivers license suspension or loss of privilege to drive in WA if you actually get convicted of the DUI or Physical Control criminal case. This particular suspension can vary depending on whether this is a first offense DUI or not. For example if you have prior DUI offense and you refuse the breath test on the new DUI and you get convicted then you face a 2 year license suspension.
Additionally if you refuse the breath test and end up going to trial to fight the DUI then in some cases the Prosecutor could use that refusal against you. The theory behind this is the driver would not have refused the breath test if they didn’t believe they were going to be above the legal limit. It can be a very effective argument during trial and it makes jurors really think.
Lastly if you decline the breath test then you might face a mandatory blood draw at a hospital. For example let’s say you refuse the breath test following the DUI arrest. The police officer then contacts a Judge. Explains why they believe you’re under the influence, and that you declined the breath test. If the Judge grants a search warrant then the police officer can drive you to the nearest hospital and force a need in your arm to draw blood.
Obviously this is not good because on one hand the DUI still has that refusal element to it when it comes to a license suspension, and being used in a criminal trial. But the police now have actual blood test results to use as the scientific evidence. Nowadays refusing a breath test in King County and in particular Seattle means most likely the police officer is going to get a warrant for the blood test. So beware.
_ About the author: Matthew Leyba is a DUI lawyer in Seattle, WA. He is rated a perfect 10 out of 10 by Avvo.com, and has been repeatedly named a Rising Star in the area of DUI Defense by the Seattle Met Magazine’s annual Best Lawyers in WA publication.