When a driver is arrested for DUI in Washington State, law enforcement essentially makes her an offer after bringing her to the police station: (1) take a breath test and if it is over a .08 you will lose your driving privilege for at least ninety days, or (2) refuse to take a breath test and you will lose your driving privilege for at least one year, and the refusal to take such test can be used against you in a court of law. A Seattle DUI Lawyer is not required to be there at the station with the driver when she makes her decision.
The driver, in essence, is told that she can refuse to provide a possibly incriminating breath test but she may very well pay a price for such a decision by losing her license for a longer period of time than if she chose to provide a breath sample. Sometimes the driver in such a situation may desire to “play the odds”, “gamble” or otherwise “roll the dice”. Unfortunately for the driver, law enforcement is not required to tell her one very, very important detail – “if you refuse the breath test, I can immediately apply for a telephonic search warrant to have your blood drawn, forcibly if necessary”. If drawn, the blood test results can be used as evidence of intoxication in court. Astonishingly, if convicted, the driver faces the harsher penalties associated with refusing to take a breath test. It goes without saying that it sure would have been nice for the driver to have known all of the terms of the offer when the decision had to be made to take, or not, the breath test. Clearly, if a Seattle DUI attorney was present, or otherwise available, she would have been apprised of all of the consequences of her choice to refuse the breath test.
The Supreme Court decision of Seattle v. St. John reviewed a scenario similar to the one described above. The Court affirmed a Seattle DUI conviction where once the defendant refused to submit to a blood test, the Seattle DUI officer immediately obtained a telephonic search warrant that required the defendant to give a blood sample by force, if necessary. The Court found no impropriety in this scenario, notwithstanding the fact that the police advised Mr. St. John that he “had the right to refuse” the breath test. The end result is that the statutory “right to refuse” a breath or blood test has been rendered illusory. After this decision, and for most DUI cases in Seattle (or elsewhere in Western Washington) a qualified Seattle DUI attorney will most assuredly advise his client to take the breath test when the “offer” is made by law enforcement.