Court Discusses Refusal of a Preliminary Breath Test in a Washington DUI Case

In many cases in which a person is arrested due to suspicion of DUI, the arresting officer will ask the person to submit to a blood or breath test. If the person refuses to undergo chemical testing after he or she is arrested, evidence of the refusal can be submitted at trial to establish the defendant’s guilt. Notably, however, as recently explained by a Washington Court of Appeals, a defendant has a constitutional right to refuse to submit to a breath test prior to an arrest, and evidence of such refusal is not admissible at trial. If you are a resident of Washington and are charged with DUI, it is important to speak with a knowledgeable Washington DUI defense attorney regarding your rights.

Facts and Procedure of the Case

It is alleged that the defendant was stopped for driving five miles over the speed limit and for failing to use a turn signal before changing lanes. When the police officer approached the defendant’s vehicle, he did not observe any signs of intoxication. He ran the defendant’s registration and learned that there was a warrant for her arrest. He arrested the defendant on her outstanding warrant, and then noted an odor of alcohol on the defendant, and that the defendant’s eyes were slightly bloodshot and her eyelids were slightly droopy.

Reportedly, the officer transported the defendant to jail, where he asked her to submit to a preliminary breath test, a tool he uses to establish probable cause. The defendant refused to take the test or to undergo field sobriety testing. She was charged with DUI. Prior to trial, she filed a motion to preclude evidence of her refusal to submit to the preliminary breath test, which the court denied. Evidence of her refusal was introduced at trial, and the defendant was convicted. She appealed, arguing that evidence of her refusal was improperly admitted.

Constitutional Right to Refuse a Preliminary Breath Test

Under Washington law, if a person has a constitutional right to refuse a search, evidence of the refusal cannot be admitted during trial, because it violates the Fourth Amendment. Specifically, it punishes the person for lawfully exercising his or her right to be free from unreasonable search and seizure. Thus, the court stated that if the defendant had a constitutional right to refuse to submit to the preliminary breath test, the evidence of her refusal was improperly admitted.

The court noted that a person does not have a constitutional right to refuse to take a breath test when the officer requesting the test has a warrant, or the request is a known exception to the warrant requirement, such as when the search is incident to an arrest. The court clarified, however, the searches of a defendant’s breath incident to arrest must be limited to crimes involving the operation of a motor vehicle while under the influence of intoxicants.

Ultimately, the court held that when an arrest is based on a crime that is not related to a DUI, a search of the defendant’s breath does not fall within the exceptions for searches incident to arrest. Thus, the defendant had a constitutional right to refuse to submit to the breath test, and evidence of her refusal was improperly admitted. As such, the court reversed her conviction and remanded the case for further proceedings.

Speak with a Skilled DUI Defense Attorney

Whether a person charged with DUI is convicted often hinges on what evidence the State is permitted to introduce at trial. If you live in Washington and are charged with a DUI, it is prudent to meet with a skilled Washington DUI defense attorney to discuss your case.  The assertive criminal defense attorneys of the Law Offices of Smith & White will work tirelessly to help you seek a favorable conclusion. We can be reached at 253-203-1645 or through our online form to schedule a meeting.

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