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To Refuse or Not to Refuse

Posted Friday, March 29, 2019 by Andrew Charles Huff

One question I’m frequently asked is if arrested for Driving Under the Influence whether you should provide a breath sample when requested by the officer. The answer really depends on the type of breath test offered but also the potential penalties attached to a “refusal” of the breath test machine.

One of the first things you may be asked to do after an arrest for Driving Under the Influence is to provide a breath test. While you could decline the invitation to submit to a breath test, doing so can create a much more complicated outcome for you.

The only breath test machine you can refuse in Washington without consequences is the portable breath test (PBT) device normally administered at the scene and many times prior to arrest. This hand-held device is used by the officer to determine whether there exists probable cause to arrest. Any results are not admissible as evidence. I normally advise clients to decline the portable breath test (PBT) because the results are not admissible and no licensing consequences exist.

Don’t refuse the formal breath test at station

Once you are under arrest and transported back to the station, you will most likely be asked to submit breath samples into the breath-alcohol machine. The primary machine now used in our state is the AlcoTest 9510. First, any results from this device can be used against you to prove impairment and /or whether you were over the legal limit of .08. Second, if you refuse this test, the officer will notify the Department of Licensing of your refusal and you will face a potential revocation of a year or more. Third, the officer has the authority to obtain a search warrant authorizing your blood withdrawal for testing and transport you to the nearest hospital for this mandatory blood draw. In other words, you could face a license revocation for refusing the breath test but still have your blood tested for alcohol by blood draw.

Additionally, any evidence of “refusing” a breath test can result in additional consequences in your case such as increased fines and additional jail time.