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Breath Test Refusals Can Be Used As Evidence In Court, Part One

Posted by Aaron J. Wolff | Jan 17, 2017 | 0 Comments

Courts across the country are still dealing with the implications of the United States Supreme Court decision in Birchfield v. North Dakota that was decided in June of 2016. Just prior to the start of the holidays, the Washington Supreme Court handed down a decision in two cases, State v. Baird and State v. Adams. These cases were consolidated and heard by the court as they concerned the same issue -- namely, whether or not evidence of a person's refusal to take a breath test can be used as evidence against them in court. The state's highest court reversed a district court ruling favorable to the defendants, holding that "[u]nder the implied consent statute, a driver's refusal to consent to a breath test is admissible as evidence of guilt in a criminal trial." Part of the reason that the court came to this conclusion was due to the ruling in Birchfield.

In both Baird and Adams, the defendants were arrested by law enforcement on suspicion of DUI. At the time that the state breath test was to be administered, both defendants were read Washington's implied consent statute. Defendant Dominic Baird consented to a breath test, while Adams refused to take one. Both defendants moved to suppress the breath test. Adams argued that "she had a constitutional right to refuse and, consequently, her refusal could not be used as evidence at a criminal trial." Baird made the same argument but added that "[a]lthough he consented to the test, the warning in RCW 46.20.308(2)(b) -- stating refusal evidence may be used against the driver -- coerced his consent because it stated a threat that the State had no authority to carry out." The trial courts in both cases found the defendant's arguments persuasive and granted their motions. The state appealed and the Washington Supreme Court took over the case.

The Washington Supreme Court first looked at whether any warrant exception applied to breath tests as these tests are considered to be "a search under the Fourth Amendment and under article I, section 7." The state argued that the exigent circumstances exception was applicable as "[a]fter drinking stops, the body naturally metabolizes alcohol from the bloodstream, thereby making the delay necessary to obtain a warrant impracticable." The U.S. Supreme Court had addressed this issue previously in Missouri v. McNeely, finding that "under the Fourth Amendment, courts must evaluate the totality of the circumstances '[t]o determine whether a law enforcement officer faced an emergency that justified acting without a warrant.'" The Washington Supreme Court stated that "[i]n the cases before us, the State did not present evidence of exigency to justify a warrantless search. Therefore, we agree with the district courts that the State did not establish this exception applied in either case." However, the court did find an exception that was applicable to both cases under a recent U.S. Supreme Court ruling, Birchfield v. North Dakota.

In Birchfield, the court held that "breath tests conducted subsequent to an arrest for DUI fall under the search incident to arrest exception to the warrant requirement." As the "search falls under an exception, as the defendants themselves acknowledge, there is no constitutional right to refuse the breath test." However, the Washington Supreme Court doesn't end their analysis there, stating that "while an arrestee has no constitutional right to refuse the breath test, he or she does have a statutory right under the implied consent law to refuse the test."

To find out what impact this statutory right had on Baird and Adam's cases, check out Part Two of the discussion.

If you or a loved one has been arrested for driving under the influence, please do not hesitate to contact attorney Aaron Wolff today at (206) 504-2500 or online.

About the Author

Aaron J. Wolff

A former DUI prosecutor, Aaron Wolff has over 18 years of experience in representing people accused of DUI and is recognized as one of the leading defense lawyers in Washington State. His relentless and passionate advocacy has lead to superb ratings and outstanding reviews from former clients.


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