The United States Supreme Court ruled in Birchfield v. North Dakota that a warrant is required if someone suspected of driving under the influence (DUI) refuses to take a blood test.  The blood test is used by law enforcement to obtain a person’s blood alcohol content (BAC).  However, it also ruled that law enforcement does not need a warrant to obtain a breath test.

The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.  While breath test are considered searches under the 4th Amendment, the Court’s rationale was that breath tests do no implicit significant privacy concerns.  For example, breath tests only record BAC and leave no biological sample in the government’s possession.  Unlike blood tests which require the piercing of skin with a needle.  A blood test also collects and allows law enforcement to preserve a sample from which it is possible to extract information beyond a BAC reading.  Information beyond a BAC would include DNA data.

This decision impacts many states which make it a crime to refuse a chemical testing by police after an arrest for DUI.  Now those states cannot make it a crime to refuse a blood test.  It is clear law enforcement must obtain a warrant before taking your blood.  However, the ruling still allows states to make it a crime to refuse a breath test.

Here, in Washington State, it is not a crime to refuse either a breath or blood test.  However, a refusal could still impact your driver’s license.  A refusal will automatically cause a one-year license suspension for a first-time offense.  A person would need to request a hearing to challenge the suspension.

Some people then wonder if they should refuse a breath test in Washington State.  Generally, it does not help to refuse a breath or blood test.  There are potentially more legal challenges for a defense attorney to employ if a person submits to a chemical test.  Also, a refusal can be used by the prosecution at a jury trial to argue that you knew you were intoxicated and that’s why you refused.  However, a DUI attorney can still help your case even if you refused a breath test.

Jeff Burleson is a skilled DUI defense attorney in the Kitsap County area who has handled thousands of DUI cases.  He knows DUIs inside and outside.  If you have been charged with DUI or refused a DUI breath test, contact Jeff for a free consultation.


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