Washington DUI: Refusal to Take a Blood or Breath Test

In Washington, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood or breath test, do you have to take one? What happens if you refuse?

Implied Consent

Washington law requires you to take a blood or breath test if you are arrested for a DUI. Washington’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC). The test must be taken within two hours of driving and under most circumstances, the officer should offer you a breath test. A blood test will be given only if you are unconscious, receiving treatment in a medical facility, or if the officer suspects you are under the influence of drugs.

You could be arrested and asked to take a chemical test for being under the influence even if you are not driving. If you have actual, physical control of a vehicle while under the influence, then you face the same penalties as a DUI conviction. Generally, drivers find themselves arrested for actual, physical control when they realize they’ve had too much to drink, pull over to sleep it off, and an officer finds them asleep (but smelling of alcohol) in the car. The state punishes this behavior as strictly as a DUI because of the driver’s potential to wake-up and drive while still drunk. In Washington, however, a driver can be arrested for being intoxicated while in actual physical control even where the car is inoperable – it is out of gas, for example. To find out more about this, read the case State v. Smelter, 674 P.2d 690 (1984) or the law in the Washington Revised Code Annotated 46.61.504.

You can read Washington’s implied consent law in the Washington Revised Code Annotated 46.20.308.

Refusing to Take the Test

1st Offense

2d Offense

3rd Offense

Refusal to take test

1 year license suspension

2 year license suspension

3 year license suspension

Once you are arrested, the officer must tell you that you have the right to refuse the test, but if you do, you will lose your license for one year and evidence of your refusal can be used against you in court. The officer must also warn you that if you choose to take a test and your results are at or above the legal limit, then your license will be suspended for 90 days. You face other penalties, mentioned below, once you are convicted of a DUI. After you submit to the officer’s test, you have the right to additional tests taken by a medical professional of your choice.

Generally, the officer cannot make you take a test if you refuse, but there are some exceptions. You must take a test if you were involved in an accident where someone was seriously injured or killed. Also, if you were killed or become unconscious due to an accident, then the officer does not need to ask you before ordering a test.

As soon as you refuse, the officer must give you notice of the state’s intent to suspend your license and information on how to request a hearing to challenge the suspension. If you want a hearing, you have to pay a $200 fee and make your request within 20 days of your arrest. The officer will also mark your license, giving you temporary driving privileges for 60 days or until your hearing date, whichever happens first.

If you do not request a hearing, or if you do but fail to prove that the officer did not have reasonable cause to believe you had been driving under the influence or that you actually consented to the test, then your license will remain suspended for one year. You can apply for a restricted license, but you would have to install an ignition interlock device on your car.

The consequences of refusal are found in the Washington Revised Code Annotated 46-20-308.

Should You Refuse to Take a Mandatory DUI Test in Washington?

It usually does not help you to refuse to take a blood or breath test when you are arrested. For a first DUI in Washington, you face jail time that ranges from one day to a year and you will have to pay a fine from $350 to $5,000. This is more severe than a year-long suspension for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Washington or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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