Seattle DUI Attorney, M. Varn Chandola, of DUI Law Firm explains the implied consent statute under Washington law.
Clients often inquire about implied consent which is an essential area of DUI law in any state. Upon being arrested for DUI in Washington, an officer must advise the driver of various rights and obligations which are provided under RCW 46.20.308. One may refer to the implied consent statute at http://apps.leg.wa.gov/rcw/default.aspx?cite=46.20.308.
The implied consent statute basically provides notice to a driver that the very act of driving a motor vehicle constitutes consent by the driver to undergo a breath or blood test to measure his or her blood alcohol concentration if the police officer conducting the stop reasonably believes that the driver is under the influence of alcohol. The driver's consent is implied even if he or she is unconscious or dead. See RCW 46.30.308(4).
RCW 46.20.308 provides, in part, as follows:
Any person who operates a motor vehicle within this stateis deemed to have given consent¦.to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503.
In other words, the driver's express consent is not required to a breath or blood test under the implied consent statute. Not only is driving a privilege as opposed to a right [See State v. Bostrom, 127 Wn.2d 580 (1995)], but the state has the authority under its police power function to enact provisions such as the implied consent statute based on its interest in maintaining the safety of the public from intoxicated drivers. See State v. Moore. 79 Wn.2d 51, 483 P.2d 630 (1971).Although consent to a breath or blood test in implied, the statute still allows a driver to refuse to take the test. See State v. Elkins, 152 Wash.App. 871, 220 P.3d 211 (2009). However, in the event of a refusal, an officer may obtain a search warrant to obtain a sample of the driver's breath or blood. It is important to note that a refusal to submit to a breath or blood test automatically results in revocation of a driver's license for at least one year. See RCW 46.20.308(2)(a). Further, a refusal to take the test is admissible in a criminal trial. See RCW 46.20.308(2)(b). Therefore not only does a refusal result in an automatic revocation of the driver's license for a minimum of one year, but the officer can still obtain a search warrant for a sample of the driver's breath or blood to measure it for blood alcohol content which can then be introduced into evidence by the state in a criminal trial for DUI charges against the driver.
When referring to the penalties under the implied consent statute for refusing to take a breath test, it is important not to confuse the portable breath test which a police officer may administer on the roadside to a driver suspected of DUI with the actual breath test that the officer administers to the driver arrested for DUI atthe police station where the officer is required to advise the driver of the implied consent warnings. The portable breath test (PBT) which is not covered by the implied consent statute is strictly voluntary and not admissible against the driver at trial. As the Supreme Court of Washington made it clear in State v. Smith, 130, Wn.2d 215, 922 P.2d 811 (1996), the scientific validity of a portable breath test is still not established.
To take or not to take the breath test is the question. Whether you like it not, if you drive a motor vehicle, you are presumed to have given consent to the state to take a sample of your blood or breath to determine blood alcohol concentration when you are suspected of driving under the influence of alcohol. Thoroughly understanding the implied consent statute is the key to making an informed and intelligent decision on whether to take the test.