Can You Refuse To Take A Breath Or Blood Alcohol Test If Asked?
A question is often asked: Can I refuse to give a breath or blood sample if asked? The answer depends, but generally, you can refuse a breath or blood alcohol test. Keep in mind that some jurisdictions will seek a warrant and force a blood draw if you refuse. Another thing to keep in mind: sometimes people are on probation for a prior DUI/Physical Control charge, and the judge says you can't refuse while on probation. If you are on probation and an officer thinks you are under the influence you MUST provide a sample of your blood or breath or you face a mandatory 30 day jail commitment and an additional 30 day loss of license if you refuse on this new charge. Does all this sound complicated? Admittedly it is, and the best way to avoid issues is to call an attorney right there while the officer waits before you refuse or accept
.….But My Friend Said I Don't Have to Take a Blood Alcohol Test
If you said this, you were probably already on your way to jail. Now, you are wondering if you did the right thing. Take a minute to read this before you make the wrong decision.
Most state laws have an implied consent law that requires you to take a blood or breath test if you are arrested for a DUI. The "implied consent" law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood or breath alcohol content. The test must be taken within two hours of driving and in most cases; the officer should offer you a DUI breath test.
You could be arrested and asked to take a chemical test for being under the influence even if you are not driving. If you have actual physical control of a vehicle while under the influence, then you face the same penalties as a DUI conviction.
Upon your arrest, the officer must tell you that you have the right to refuse the test, but if you do, you will lose your license for one year and evidence of your refusal can be used against you in court. The officer must also warn you that if you choose to take a test and your results are at or above the legal limit; your license will be suspended for 90 days. You face other penalties, mentioned below, once you are convicted of a DUI. After you submit to the officer's test, you have the right to additional tests taken by a medical professional of your choice.
Generally, the officer cannot make you take a test if you refuse, but there are some exceptions. You must take a test if you were involved in an accident where someone was seriously injured or killed. Also, if you are on probation, you may not be able to refuse the test.
As soon as you refuse, the officer must give you notice of the state's intent to suspend your license and information on how to request a hearing to challenge the suspension. You will need to make your request within 20 days of your arrest.
It usually does not help you to refuse to take a blood or breath test when you are arrested. For a first DUI, you face jail time that ranges from one day to a year and you will have to pay a fine from $350 to $5,000 and have a year-long revocation of your license for refusing to provide a sample of your blood/breath. Still, refusing a blood test for DUI does not guarantee that you won't be convicted. You could be found guilty of a DUI even if your refusal means that the prosecutor does not have proof that your BAC was over 0.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.
As you can see the laws can be very complicated. The best thing to do is to call an attorney right there while the officer waits before you refuse or accept.
About the Author
DUI Defense Attorney, Mark W. Garka is a sustaining member of NACDL. He has served as a law clerk in the Snohomish County Superior Court, and was a Deputy Prosecuting Attorney. He limits his practice to DUI Defense exclusively. Get more information and a free consultation by visiting http://www.washington-dui.com/
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