“If I am arrested for DUI, should I refuse the breath test or should I take it?”
That’s the question that I, and probably most Seattle DUI lawyers and DUI lawyers anywhere for that matter, get asked by friends, relatives, and anyone else who discovers what we do for a living, get asked more than any other. For quite some time in the state of Washington the answer, with the exception of certain nuances, was pretty straight forward. When in doubt, take the breath test (or blood test when that circumstance arose). The increased potential penalties due to a refusal, such as a much lengthier license suspension, inability to preserve ability to drive by entering into deferred prosecution, additional jail and fines, etc., made the refusal option unattractive. Those issues, combined with the fact that in many jurisdictions from the late 1990’s on, there were several successful attacks on the admissibilty of the breath test, made the answer relatively simple in most cases. Take the breath test, lessen the potential consequences, create more options to preserve your driving privileges, and take a relatively good gamble that the breath test won’t be admissible anyway. Only in cases where a person had multiple DUI’s in his or her past, had previously entered into a deferred prosecution, and was likely to blow a relatively high number was the answer potentially different. Then came the ignition interlock laws.
In 2009, the Washington State Legislature created the Ignition Interlock License (IIL). While the new laws created many new obstacles for clients, they also created some opportunities that had not been present before. The most important positive change was that for the vast majority of DUI related license suspensions, a person was immediately eligible to obtain an IIL. This meant that regardless of the length or reason for the suspension, so long as the individual installed an ignition interlock device on his vehicle and obtained SR-22 insurance, he or she could drive without other restrictions. No longer was there a waiting period to obtain an Occupational License. The driver’s employer did not need to be notified (unless a company vehicle was being driven). There were no longer any time or geographical restrictions. The new law also mandated the IIL for at least one year whenever a person was convicted of DUI or entered into a deferred prosecution.
The result of the 2009 Ignition Interlock laws was to create a new decision point for DUI lawyers and clients with respect to the “refusal” question. If the person was going to still be able to drive regardless of the outcome and may very well have to have an ignition interlock license anyway, maybe a refusal would make more sense. Certainly in cases where there might be a very high BAC in a court where that evidence could be admissible, the advice might change. Still, there were too many variables and unknowns, especially during the 2:00 a.m. call for advice, to feel very comfortable giving blanket advice to refuse breath or blood alcohol testing.
Then came City of Seattle v. St. John, 166 Wn.2d 941.
In this case, the Washington State Supreme Court held that there is no legal authority preventing law enforcement from obtaining a search warrant to retrieve a blood sample if a request for a breath sample is initially refused by the driver. The fact that such a ruling completely guts what had previously been considered a person’s “right” to refuse to give a breath sample pursuant to the state’s “implied consent” statute aside, the DUI practitioner giving “refusal” advice now has a new consideration. If advice to refuse a breath test is given and acted upon, and an admissible blood sample is acquired pursuant to a warrant, is the practitioner on the hook for malpractice. Because under such a scenario, upon the advice of counsel the driver has placed himself in a situation where he faces higher sanctions due to his refusal in an attempt to deprive the state of evidence that it can get via another manner.
The more things change, the more the state whittles away at its citizens rights and options. As before, when in doubt, take the breath (blood) test.