To Blow Or Not To Blow?

October 09, 2018 Written by
To Blow or Not To Blow? To Blow or Not To Blow? Jennifer Witt

People frequently call us during a DUI arrest to ask whether or not they should blow at the station. (This “blow” refers to the admissible breath test and not the portable breath test along the roadside.) More often than not, people tell us that their plan is to refuse to blow and they want us to give them confirmation that this is a good idea. Often, they are quite surprised when we provide them with numerous reasons why they SHOULD take the breath test.

Sanctions are more severe if you refuse

First, Washington is an “Implied Consent” state, meaning any person who operates a motor vehicle within this state is deemed to have given consent to a test or tests of his or her breath for the purpose of determining the alcohol concentration in his or her breath. In other words, by driving on the roads in the State of Washington, you are essentially agreeing to take the test. Since there is an implied “agreement”, when you violate it (by not taking the test), you are also agreeing to predetermined sanctions by Washington’s Department of Licensing – specifically a lengthy license suspension. 

The refusal can be "argued" by the prosecutor at trial

Second, if you refuse the breathalyzer test, that refusal can be used against you at a criminal trial. This means the Prosecuting Attorney is allowed to “argue” the refusal to the jury when they are putting on their case in chief. The state has wide latitude in its presentation regarding your refusal. The Prosecutor can argue that “only the defendant knows how wildly intoxicated they were, and the refusal is just their way to hide that heinous fact from law enforcement or the Courts.” Additionally, this argument regarding your refusal can also be used at Arraignment. The Prosecutors can argue (and with fairly decent success) that a person who refused is a danger to the community and that individual needs an ignition interlock installed on his or her vehicle.

In a nutshell, we typically believe that it is better for a person who has been arrested on suspicion of DUI to blow into the breathalyzer machine at the station when requested. It is easier for a defense attorney to challenge the results of the blow than it is for us to challenge a refusal. These are just two of the main issues that arise in a refusal. If possible, reach out to a criminal defense attorney after you’ve been arrested but before the breath test at the station is administered. Each case is unique and the attorney will want to ask you questions as you are being processed.

If you have questions about your DUI case, give our Gig Harbor or Bremerton office a call. We take calls 24/7 and our consultations are free. Every stop is unique and it’s important to have an experienced criminal defense lawyer learn the details of your case before you make any big decisions.