Can I Refuse A Breathalyzer Test After My DUI Arrest? | Washington State

[@TreadMotorsports]

Here is what i would like to know, please..... 1st - Can a test show positive for alcohol when the suspect has literally had zero alcohol... I know calibration is a big deal - can the calibration be off so bad that alcohol is detected when none is it the system...... 2nd - I hear it's always a good idea to request a blood test, and an individual should even offer to pay for the test. Is this a good idea? Lastly , I hear talk that there is paperwork that the officer will file unpon the refusale of a test that will suspended the suspects drivers license, but most times, when I research this question , it's stated as if the arrest has already been made - is there a difference between being asked because your under arrest vs being asked just because they suspect? Bonus question - if one's drivers license is suspended, but the case is won in court, is the suspension reversed..... if I'm understanding correctly, the suspension comes from ( refusal ), not if one is guilty or not...

[@wittlawgroupps]

Greetings @TreadMotorsports - Great questions. Let me start by saying we are licensed in Washington State, so I can only answer your questions based on the laws as they apply in Washington. So here goes: (1) My experience has led me to believe that a person CAN show positive for alcohol when they have consumed zero alcohol. It would be cause by medical conditions such as type 1 diabetes or GERD / acid reflux. I don't think it is a calibration issue, it would be an issue of a machine mistaking one compound for another. (2) In Washington, you can't ask for a blood test until after you have submitted to the breath test. This is a statutory rule, you just can't swap one the the other. If you try, and have hesitancy about taking the BAC test, the Officer is just likely to mark you down as a "Refusal", which is not what you want to have happen. (3) Regarding the paperwork, when an officer makes an arrest, they send the paperwork off in two directions. One packet goes to the Prosecuting Attorney of the local jurisdiction (who will ultimately "charge" the case, and the other packet goes to DOL. The DOL packet is looked at through a different prism, and the info contained in the packet has to meet certain factors in order for the DOL to have jurisdiction. Specifically, the info in the packet needs to establish (1) the person has a blood alcohol content of above .08 as shown by accurate analysis of the person's breath, or (2) the person has a THC concentration of 5 ng/ml or greater in their blood, or (3) the refused the BAC test. So to answer your question, there is a difference because the State would only be able to collect this info (the breath or blood tests) if there WAS an arrest. Because, just by de facto progression of events, if the person wasn't under arrest there wouldn't be a situation where the State would or could collect this evidence. (Bonus Question) - If the case is WON in court, but the DOL has previously suspended you because of a Refusal (or whatever per se violation), then the DOL's prior decision to suspend you would still stand (meaning it would not be reversed). The only exception to that would be if you could get the Court where you litigated the criminal case to sign an Order indicating that there was a constitutional violation, then you could take that Court Order and bind up the DOL's ability to suspend you. That is rare, and it is the only situation where you can use one branch (the Court) against the other branch (the DOL). Hopefully this helps, and you can decipher through my typos. If you have any questions, feel free to call. Also, like and subscribe to the channel. It would be much appreciated.