Implied consent to a breath test
Believe it or not, under Washington's "Implied Consent Law" you have already consented to the breath test if you drive a car in this state. Simply put, the Implied Consent law says: "Take the breath test or you will lose your license." Under Washington's 1999 DUI law amendments the Implied Consent Law now also says "If you take the test and blow over the legal limit, you will lose your license." The consequences for refusing the test or taking it and flunking are different but under either scenario the DOL will seek to automatically revoke or suspend your license independant of the DUI court case. Generally, a person with no prior DUI arrests who refuses to take the test will almost certainly suffer harsher licensing consequences. Suspension/Revocation after flunking the breath test or refusing happens automatically at the hands of the DOL. The only way to have a chance to fight automatic suspension of the driver's license is to timely send to the DOL (with the $200 fee unless you are indigent,) a request for an administrative hearing.

Many people mistakenly think that they have satisfied their obligation to blow into a breath test machine by blowing into the portable breath test machine (PBT) which is commonly given by the police officer at the scene of the traffic stop. That is a grave error. The Implied Consent Law is satisfied only if you blow into the "official and approved" DataMaster breath test machine which is located at a police station. It does NOT apply to the portable breath test commonly given at the scene of the stop. Refusing to submit to the portable breath test machine will not impact your driver's license; refusing to submit to the DataMaster breath test at the police station results in serious licensing consequences and may adversely impact the defense of the DUI charge. The Implied Consent "warnings" given at the police station before the DataMaster breath test do not explain the differences between the portable breath test and the DataMaster as they relate to the Implied Consent law. Many people have lost their licenses because they did not understand this critical distinction.

Because the decision to take or refuse the breath test has serious consequences, the law provides that you must be officially "reminded" of the consequences of your decision. The officer reads a form and you are then asked to make your decision regarding the test.

The form is difficult to understand, especially if you are hearing it for the first time. Keep in mind that at the time the officer is reading it, you have been arrested, handcuffed and taken to jail, probably for the first time in your life. For most people, the shock of the arrest makes it very difficult to appreciate the fine legal distinctions presented by the Implied Consent Warning. It is no surprise that many people under arrest for DUI exercise the right to call an attorney for advice before making any decision regarding the breath test.

The Implied Consent Warning form does not tell you several important facts: If you refuse the test, you will probably be prosecuted anyway and your refusal to take the test will likely be a cornerstone of the prosecutor's case. Also, if you refuse the test your license will be suspended/revoked and you will have to file proof of financial responsibility (otherwise known as "high risk" insurance) with the DOL, the same as if you had been convicted of DUI.

Any person facing the decision to take or refuse the breath test should call an attorney immediately to discuss the consequences of that decision in connection with the specific facts of the case. Generally speaking, however, the consequences of refusing a test are more severe than taking it and flunking.

If a person under arrest with no prior DUI convictions and no prior (within seven years) DOL administrative actions takes a breath test with a result near or above the legal limit, which is .08 in Washington, the chances of being convicted are usually increased. If the test result is .08 or higher, the Department of Licensing will suspend the driver's license for 90 days administratively (before trial) and for an additional 90 days (minimum) if convicted of the DUI. The person may apply for temporary restricted license after the first thirty days of the suspension have elapsed.

On the other hand, if a driver refuses to take a breath test, there are a number of adverse consequences, the most serious of which is a one-year license revocation for a first refusal within seven years, or a two-year license revocation for a second or subsequent refusal within seven years. One must serve the first 90 days of the revocation before becoming eligible to apply for a temporary restricted license. The Implied Consent Warning makes no mention of these important facts.

Furthermore, the fact of refusal is admissible in the drunk driving trial. In other words, the prosecutor can argue to the judge or jury that the reason the driver refused testing was because the defendant knew he or she was drunk and would fail the test. Additionally, a test refusal can increase the fine and jail sentence of a person convicted of DUI as well as result in additional and longer license suspensions based on the conviction.

The driver is entitled to a hearing before the Department of Licensing before a revocation for test refusal occurs if a request is made within 30 days of the date of arrest, accompanied by a check for $200.

The law regarding taking or refusing the breath test is one of the most complicated areas of DUI law. This short summary cannot substitute for legal advice from an experienced attorney. Any person who is asked to take a breath test by a law enforcement officer should ask to contact an attorney immediately.

Fox Bowman Duarte is the only DUI defense firm in Washington State with a section of the firm dedicated solely to contesting DOL license suspensions.