To Blow or Not to Blow: Implied Consent and DUI Arrests

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To Blow or Not to Blow: Implied Consent and DUI Arrests

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As a DC and Virginia DUI lawyer, one of the most common questions I get from clients charged with drunk driving is whether they should have agreed to take the breath test, after they are arrested. “To blow,” as it is commonly referred to, means to submit two breath samples to the police by blowing into a machine that attempts to measure the amount of alcohol in your bloodstream. This is done at the police station after you have been arrested for suspicion of DUI or DWI. If the breath test indicates that you have a blood alcohol concentration (BAC) of .08 or more per 210 liters of breath, then in both Washington, D.C., and Virginia you are presumed to be intoxicated.  This means that if, at trial, the prosecutor is permitted to enter your .08 or above breath test scores into evidence, you will almost undoubtedly be found guilty of DWI.

While there are certainly ways to prevent the test scores from being admitted, and your attorney will discuss those with you, the most winnable DUI and DWI cases are those in which there are no breath test scores. But for there to be no test scores, the person arrested must have decided not to participate in the breath test given by the police officer. Referred to as “refusal,” failing to submit to the breath test comes with its own consequences. In both Virginia and D.C., everyone who accepts a driver’s license agrees, by law, to submit to a breath test when arrested for DWI or DUI. This is called “implied consent.” You don’t know that you gave it at the time of receiving your license, but the law says that you did. And both D.C. and Virginia have penalties for refusing to take the breath test. In Virginia, the first time that you refuse to blow is a civil infraction, and the penalty and automatic driver’s license suspension of one year. This is the same license suspension that you receive if convicted of a Virginia DWI. But in cases of refusal, you cannot be issued a restricted driver’s license, which means that you will be finding alternative transportation to work for the next year. In the District, refusing to blow also results in a one year license suspension, with the difference being that a DMV hearing examiner will hear your case, rather than a judge. The second time you refuse to blow in Virginia is a criminal infraction, that carries a maximum penalty of up to 12 months in jail. In addition, your license will be suspended for three years.

Despite the license suspension you will most likely incur for refusing to take the breath test, there are some legal advantages to doing so. First, both D.C. and Virginia have mandatory jail time if your BAC is over a certain limit. In Virginia, mandatory time begins with a BAC of .15. In D.C. a .20 BAC or above will land you in jail. Without breath test scores, these mandatory jail times do not come into play. But the most obvious benefit of going into a D.C. or Virginia DUI trial without breath test scores, is that you have a much greater chance of winning your case. Without scores, the government is required to prove to a judge or jury that you were driving under the influence based only on the observations of the officer(s) who arrested you. This is very subjective evidence, and many officers testify poorly in court. This means that your lawyer has a better chance of convincing a judge that you are not guilty, than if “scientific” evidence is presented.

By the time you talk to your lawyer about your D.C. or Virginia DUI or DWI case, your decision to blow or not to blow is in the past. Your lawyer will work with what he has, and provide you with the advice that fits the particular circumstances of your case.

If you have been arrested for DUI in Washington, D.C. or Northern Virginia, call JPMLegal for a free consultation.