Tacoma, WA asked in DUI / DWI for Washington

Q: Can I refuse a breathalyzer test if I'm pulled over on suspicion of DUI?

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2 Lawyer Answers
Jason Powers
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Jason Powers
Answered
  • DUI & DWI Lawyer
  • Mt Vernon, WA
  • Licensed in Washington

A: Yes, you can but you may be punished more for it. In Washington, if you refuse your breath test the state will try and inflict harsher penalties on you than if you blew. For instance: if this is your first offense, the penalties double the jail time from at least one day to two if refuse. Also, the fines increase and you could lose your license for 2 years, rather than 90 days or a year if you provided a breath sample. Also, the Department of Licensing will try and suspend your license for a year, rather than 90 days if gave a sample. Finally, not a penalty, but at trial the prosecutor will argue you refused to provide a test because you knew would be over the legal limit. This is called "consciousness of guilt." It may be effective depending on the facts.

Stan Glisson
Stan Glisson
Answered
  • DUI & DWI Lawyer
  • Port Orchard, WA
  • Licensed in Washington

A: Great question.

Yes.

You can also refuse to take any roadside "sobriety" tests (including the handheld roadside breath test), or to answer any questions that might incriminate you. Most importantly, you have the right to talk to a lawyer before deciding whether to take a BAC test, and there are lawyers on call 24 hours a day to take that call. The arresting officer will make an attempt to put you in private telephone contact with one of those lawyers to get your questions answered.

Be aware that if you refuse to take the breath test after being provided written warnings, the department of licensing can revoke your driver's license. Not for DUI, but for refusing the test. Also, if you wind up convicted of DUI, that refusal can enhance the penalties, making the DUI more costly to you than it would have been had you taken the test. That's why it's important to talk to the lawyer to make sure you are making the right choice.

These same penalties do not arise for refusing to perform the roadside tests or answer questions. So most lawyers give this advice (although every case is different): don't do the roadside tests, don't take the handheld breath test, don't answer questions, do request a lawyer clearly, firmly and politely.

Finally, be aware that if you refuse the breath test, in many jurisdictions the officer is going to get a warrant to draw your blood to test for alcohol. You have a right also to get your own, independent blood draw done to have your blood tested by your own expert to contradict the state's. You have to ask for that opportunity though, and make sure all officers involved (including jail booking officers) know that you want to exercise that right.

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