SHOULD YOU TAKE THE BREATHALYZER?

In Washington State, you are deemed to have given consent to take a breathalyzer or blood test if you are arrested and the police had reasonable grounds to believe that you were driving while under the influence or were in physical control of a vehicle while under the influence. You do have the right to refuse the tests and the police must advise you of your right to refuse. If you refuse, however, your license will be suspended by the Department of Licensing for 1 year. A DUI conviction has a mandatory license suspension of 90 days. So by refusing to take the breathalyzer, you are exposing yourself to a longer period of suspension than if you took the breathalyzer and were convicted.

The refusal can also be used against you in court to show that you were conscious of your guilt. Although being required to consent to a breathalyzer or blood test when you are arrested for DUI or Physical Control effectively compels you to provide incriminating evidence against yourself, the courts have ruled that this is not unconstitutional. The 5th amendment of the U.S. constitution says that the government may not force you to be a witness against yourself. It has been determined that this applies to testimony only. Because giving a breath sample or a blood sample is not giving testimony, the courts allow the state to compel you to give a sample by threatening to suspend your driver’s license if you do not comply.

You do not have the choice of taking a blood test instead of a breath test in Washington State. Under Washington law, a blood test is given only when 1) you are unable to physically give a breath sample due to some sort of injury or limitation or 2) you are being treated in a hospital. If these circumstances are not present, you do not have the option of taking a blood test rather than the breathalyzer.

Do not confuse these rules with the portable breath test (PBT) that the police try to give you on the side of the road when they first pull you over. The PBTs are unreliable and inadmissible as evidence in court for the prupose of proving your blood alcohol content (BAC) was over the legal limit. The PBTs are only admissible to show that the police had probable cause to arrest you for DUI or Physical Control. There is no implied consent with regard to taking the PBT- you can refuse to take this test without having your driver’s license suspended. You should NOT take this test- it will only be used by the police to build a case against you.

The choice of whether or not you take the breath test at the police station- the breath test that counts- is up to you. It is usually best to take the breath test so that your driver’s license does not get suspended for an entire year and have a DUI lawyer fight to get the breathalyzer results thrown out of court