You Must Have A Taken The Breath Test For The Keller Decision To Be Relevant

June 24, 2022 Written by
I refused the BAC test. Does Keller apply? I refused the BAC test. Does Keller apply? Kitsap Defense Attorney Jennifer Witt

The calls and emails have been steady since the Keller decision last week. The common theme is “I heard DUI cases are getting thrown out.” Nope. Nada. Not the case.

 

Again, the Keller decision has to do with admissibility of BAC results. Judge Jahns’ decision means that the BAC results (in Kitsap County) will not be admissible as evidence in a DUI trial.

 

This means, there must be a BAC result in your case for the Keller decision to be relevant.

 

Additionally, the BAC is only ONE piece of evidence the Prosecutor will present (or not) to a jury during a trial. If the BAC is not admissible, it weakens the Prosecutor’s case but it does not mean the case is “tossed out.” The prosecutor will use other evidence to establish that you were impaired.

 

Many out of state drivers or people who are unfamiliar with the fact that Washington is an implied consent state refuse to blow into the BAC machine when arrested for DUI. As an implied consent state, you agree, by driving on Washington roads, that you will submit to the BAC (this is different than blowing at the roadside test) if being investigated for DUI. If you refuse, you will face harsher penalties, the DOL suspension is longer, and the Prosecutor is allowed to argue inferences from your refusal.

 

So, for those who refused the breathalyzer in either their pending case or past case, the Keller decision has no impact for you. There is no BAC that is relevant to your case.

 

Finally, if you have a pending case or a past case with another attorney, you must contact that attorney to discuss your concerns. It is not appropriate for lawyers to comment on another criminal defense case because EVERY fact is relevant and, without reviewing the discovery provided by the prosecutor, it is inappropriate to offer advice or speculate on a pending or past case.