Implied Consent Laws and DUI Blood Testing
Why Implied Consent Laws Already Apply to You:
If you drive in the state of Washington, you are presumed to have already consented to a breath test upon a lawful arrest. This is known as Washington’s Implied Consent Law. In essence, this law states that simply by driving in Washington, you impliedly agree to take a breath test when under arrest for DUI, and that if you refuse, you will lose your license. Thus, whether you refuse the test or you take the test and blow at or over the legal limit, there will be consequences.
The Implied Consent law recently has been challenged in the Supreme Court of Washington as a violation of our state and federal constitutions. As of this writing, no decision has been published. Attorney Jacey Liu of Callahan Law, P.S., Inc., an accomplished, persuasive writer, authored briefing submitted to the Supreme Court, at the request of a DUI firm representing one of the appellants in the case.
Whether the person submits to testing, refuses testing, or blood samples are obtained by search warrant, the Department of Licensing (DOL) will revoke or suspend the driver regardless of whether a case has been filed in court charging the person with a crime, unless the driver timely requests a hearing to challenge the action and prevails. In general, the consequences of refusing a test are usually more severe than if you take the test and do not pass it.
A serious consequence of refusing a breath test is a higher mandatory minimum jail sentence; another serious consequence of refusing to take a breath test is:
- A 2-year license revocation for a first refusal
- A 3-year license revocation for a refusal if you have a prior offense within 7 years
- A 4-year revocation for a refusal following 2 or more prior offenses in a 7-year period.
For Reliable Legal Representation, Call Callahan Law, P.S., Inc. (206) 866-6739
The Court and DOL processes for DUI may seem like a complicated maze; likewise, the Implied Consent Law confuses many drivers. The law requires that the officer inform the driver of this law so that the driver can intelligently make an informed decision whether to blow or not. The police officer either reads the implied consent warnings to the driver or allows the driver to read them. If the driver is confused about the meaning of the warnings and makes that known to the officer, the officer must do something, such as put the driver in touch with an attorney by phone.
If you were not given the implied consent warnings prior to the test or refusal, or if you expressed confusion to the officer and no attempt was made to alleviate your confusion, your breath test result or evidence that you refused the test, may be “suppressed,” meaning it would not be used against you in your DUI trial in court or in your DOL hearing. Unfortunately, the law regarding taking or refusing the breath test can seem complicated. That’s why getting legal advice from Callahan Law, P.S., Inc. is a step in the right direction. Contact our DUI lawyers in Seattle, Tacoma, or Shelton for a free review!
Testing for Marijuana and Drug DUI: The Blood Draw
If you refuse to take the blood test, the Department of Licensing will revoke your driver’s license for at least one year. In addition, the prosecutor will likely try to use your refusal to take the blood test as evidence that you believed you were guilty, assuming that if you were innocent you would have freely submitted. There are many reasons why a person may not wish to submit to blood testing, including a fear of needles, hospitals, or of an inaccurate analysis. However, it usually does not benefit the driver to refuse the blood test, because even if the test is positive for marijuana or drugs, there are a multitude of things that can go wrong in the taking of the blood, in storing it, and in analyzing it. If there are serious problems in any part of this process, the analysis might not be permitted to be used against you in court.
DUI Blood Test – Drawing Blood Without Your Consent
The blood draw is typically done at a hospital, medical clinic, or sometimes, in a medical aid car/ambulance. The blood draw may only be performed by a physician, registered nurse, licensed practical nurse, nursing assistant, physician assistant, first responder, emergency medical technician, health care assistant, or technician trained in withdrawing blood (phlebotomist). Currently, officers are not trained to draw blood, but in at least one state (Arizona) officers may draw blood from the driver and often do so while the driver is seated in the back of the patrol car!
Note that if you are in an accident and are unconscious, the officers have authority to take your blood without your permission under the law. This was established to ensure the officers have a way to collect evidence without having to wait for you regain consciousness in order to give permission, because the longer the officer waits, the less active the drug will be in your system.
Marijuana and Drug DUI Laws: Blood Analysis
DUI blood test results how long?
After blood is drawn for a DUI Blood Test, it is delivered to the Washington State Toxicology Laboratory (WSTL) for analysis. It usually takes a few months before the result is reported to the officer, who then reports it to the prosecutor (and DOL if alcohol is present above .08). This causes a delay between the date of the arrest and the filing of charges. That delay can take several weeks to months.
The method of analysis of the blood is “selected ion monitoring gas chromatography mass-spectrometry.” Ms. Callahan has extensive training in gas chromatography, having received advanced training at Axion Labs in Chicago. She understands that blood testing is subject to a multitude of errors in the analytical process, whereas most attorneys (judges and prosecutors included) believe that blood testing is the “gold standard” of alcohol/drug testing and is virtually unassailable.
She understands that blood testing is subject to a multitude of errors in the analytical process, whereas most attorneys (judges and prosecutors included) believe that blood testing is the “gold standard” of alcohol/drug testing and is virtually unassailable.
Nothing could be further from the truth. A lawyer trained in the science that underlies the analytical process knows what problems and errors to look for in reviewing the work of the State Toxicology Laboratory. It takes that level of knowledge to find the thread that will unravel the prosecution’s case. Only a few lawyers in Washington State have availed themselves of this critically important training, which is so necessary to defending a marijuana and Drug DUI cases.