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You are out and about, having a good evening with friends, family or both. There is laughing, great conversation and, like in many social settings, drinking adult beverages. You don’t feel like you are “drunk”, but maybe you feel “buzzed” or you aren’t 100% sure how you feel. Though you decide ultimately to drive. At some point during your drive, for whatever reason, you are pulled over and/or encounter law enforcement, and now it has become clear to you that you may be facing a DUI investigation. Now, you have to decide what to do next? This is the million-dollar question.
In a DUI stop/investigation, there is no one size fits all answer. The particular circumstances of your situation can and should dictate what you should do next. It is in this framework that you have to evaluate the situation and ask the important questions – what has led me to make contact with law enforcement? In some circumstances, it may be advisable to answer questions, to take the field sobriety tests, and to even take a breath or blood test. In other circumstances, it may be advisable to not answer any questions, and to not take any tests at all. The details make the difference! Though the one thing that most, if not all lawyers will tell you is that you should ask to speak to an attorney prior to taking a breath or blood test. It becomes a much more difficult question whether or not to take breath test or blood test if you are unable to speak to a DUI attorney prior to having to make that decision.
It is imperative to be very aware that by not taking a breath or blood test you may be dramatically increasing the potential penalties you are facing in your case. In Washington State, if you refuse to take a breath or blood test, both the criminal penalties increase (jail time and license suspension time, increase if convicted). In addition, the administrative license suspension time increases, if proven. See RCW 46.61.5055 and RCW 46.20.308.
First, remember it is not illegal to drink and drive in Washington; however, it is illegal in Washington to drive under the influence of intoxicants (DUI). DUI can be proven based upon the “alcohol” magic number: .08 or greater based on a blood or breath test obtained within two hours of driving or the marijuana magic number of 5ng of THC obtained from a blood test within two hours of driving. See RCW 46.61.502. Though the law also allows the prosecution to use the results of these tests even if the results are under .08 for alcohol or below 5 ng for THC See RCW 46.61.506. If these tests are below the legal levels which dictate impairment as a matter of law, then they are potentially helpful to your defense case; moreover, the law also allows the results of these tests to be used in a criminal or civil case, even if they were obtained more than two hours after driving. See RCW 46.61.502. Of course, if these tests were obtained more than two hours after driving then their legal worth can be debated to the jury or judge, based upon the specific circumstances (obtained two hours and one minute after driving versus obtained four hours after driving). Furthermore, some people believe that if the prosecution does not have a breath or blood test reading that they cannot prove DUI – this is 100% untrue.
The reality is, DUI based upon alcohol or drugs, including marijuana, can be proven without any number at all, i.e., no breath or blood test. As long as, the prosecution, can prove beyond a reasonable doubt determine the person accused of DUI was under the influence or affected by alcohol, drugs, including marijuana, or a combination of both. See RCW 46.61.502.
What does that mean to the person potentially facing a DUI investigation or a DUI prosecution? Based on all the circumstances: driving (no bad driving, speeding only, swerving, accident), answers to questions, observations about physical condition of the accused individual, results of field sobriety tests, a jury or judge could still find you guilty of DUI if convinced beyond a reasonable doubt that this person was affected by alcohol, drugs or a combination of both. It is important to remember, if you refuse to take a breath test; the additional increase in penalties the prosecution will use as evidence of refusal or consciousness of guilt—i.e. evidence of guilt! See RCW 46.20.308. Here are some of the most important things to remember when you have contact with law enforcement in a DUI investigation:
Law enforcement is looking at everything you do and say during your interaction. Treat the situation like it is – a very serious and important situation. Always be pleasant/respectful/courteous towards the officer you are speaking with. Do not argue with him or her. This never helps at the time of the investigation and they will attempt to use it against you in court later. Most importantly, NEVE EVER lie about anything. Said another way, if you have been drinking, don't deny it. Doing so can damage your credibility. If the truth hurts, it is far better to respectfully decline to answer questions and to very clearly and unequivocally ask to speak to a DUI lawyer immediately.
A DUI situation is a complicated fluid process: the individual circumstances of your situation may make the difference between whether you should consent to test and talk to law enforcement or ask to speak to an attorney and refusing to take all tests. It’s important to note, there is no one right way; however, speaking to an attorney before making the decision to take or refuse the breath test is always advisable. Whether you should ask for an attorney immediately and refuse to do or say anything at the start of the contact is an individual fact-specific inquiry.
Disclaimer: The legal information presented on this site should not be construed to be formal legal advice, nor the formation of a lawyer or attorney relationship. Any results set forth herein are based upon the facts of that particular case and do not represent a promise or guarantee. Please contact the Law Offices of Nicholas Wood, P.S. for a free consultation on your particular matter.
Nicholas "Nick" Wood - Law Office of Nicholas Wood, P.S.
Nick Wood received his J.D. in 1999 from Lewis and Clark's Northwestern School of Law in Portland Oregon. The Law Office of Nicholas Wood, P.S. has represented clients for various criminal defense matters since 2006.
Nicholas "Nick" Wood - Law Office of Nicholas Wood, P.S.
Nick Wood received his J.D. in 1999 from Lewis and Clark's Northwestern School of Law in Portland, Oregon. The Law Office of Nicholas Wood, P.S. has represented clients for various criminal defense matters since 2006.