DUI BREATH TEST: AN "OFFER YOU CAN'T REFUSE" by Jon Scott Fox   October 2009

The scenario occur frequently: A driver is arrested for a Washington State DUI and taken to a police station, where the DUI police officer makes an "offer". Reading from a form, the officer says, in essence, "Here's the offer: Take the breath test, or don't take it. If you do take it and you blow over the legal limit, you lose your license for at least ninety days. However, you have the right to refuse. If you refuse to take it, you lose your license for at least a year and your refusal can be mentioned in court. Make your decision." The driver understands from the offer that he can refuse to provide a possibly incriminating breath test but he'll pay a price for it by losing his license for a longer period of time than if he took the breath test. Unfortunately for the driver, the officer isn't required to tell him the full details of the offer — details that would reveal this to be an "offer you can't refuse." Left unsaid is that if the driver does refuse, the officer can immediately apply for a telephonic DUI search warrant for the driver's blood and have the blood drawn — forcibly, if necessary. The blood test will then be used as evidence of intoxication in court, along with the driver's refusal to take the breath test. If convicted, the driver faces harsher penalties because he refused the breath test. It would have been nice for the driver to know the full "terms" of the offer to take the breath test when the decision had to be made.

The recent Supreme Court decision in the DUI case of Seattle v. St. John reviewed a scenario similar to the one described above. The court approved of police procedure that amounted to a real-life "offer you can't refuse" despite the fact that the true consequences of the "offer" were not revealed to the driver. The Court affirmed a Seattle DUI conviction where, once the defendant refused to submit to a blood test, having been told he had the right to refuse it, the Seattle DUI officer immediately obtained a telephonic search warrant that required the defendant to give a blood sample by force, if necessary. The Court found no impropriety in this scenario, despite the fact that the police advised Mr. St. John that he "had the right to refuse" the breath test. The end result is that the statutory "right to refuse" a breath or blood test under RCW 46.20.308 has been rendered an illusory, hollow, "right" and a trap for the unwary. After this decision, for most DUI cases in Seattle or elsewhere in Washington State, a good defense attorney will advise the client to take the breath or blood test when the "offer" is made by a DUI police officer