The Washington Supreme Court recently handed down a decision in two cases. Both dealt with whether or not evidence of a driver's refusal to take a breath test can be used against that driver at trial. This is the second part of the discussion of this case, Part One can be found here.

In the cases of State v. Baird and State v. Adams, the Washington Supreme Court found that a driver has no constitutional right to refuse a breath test, however, the Washington state legislature has given drivers suspected of being behind the wheel while under the influence a right to refuse a test. This right to refuse does not come without consequences, however.

The court noted the refusal right was "granted as a matter of grace through the statutory process." The court explained that, "We have never held that refusal to consent to a BAC test cannot be introduced as evidence of guilt, especially when the defendant agreed to this result in exchange for the privilege to drive." The implied consent statute in Washington, rather than authorizing a search, "authorizes a choice between two options, to consent or refuse, with penalties attached for refusal." The court states that the police cannot require drivers to submit to a test but the state can make drivers who refuse to consent face consequences for doing so, including that the refusal may be used as evidence against them. The court reasoned that allowing this type of evidence doesn't violate a driver's right to refuse consent, and because it is not a constitutional right, admitting evidence of refusal to take a breath test does not implicate the same concerns of fairness as in other instances.

The court stated that drivers "impliedly consent to this result by driving on the roadway and by driving under circumstances that amount to probable cause to believe they are intoxicated, and ultimately, they actually agree to this result when they refuse the breath test." The court further reasoned that "[i]n essence, drivers waive the right to shield their refusal from use as evidence when they take advantage of the privilege to drive in exchange for their waiver." The admission of this evidence also further's the public policy goal of keeping motorists safe on the roads. The court stated that "[o]btaining a breath test -- to verify intoxication and thereby help ensure that an intoxicated driver does not remain on the roadway -- relates to the safety of all motorists." Furthermore, the court states that "[t]he United States Supreme Court also implicitly approved of this result under the Fourth Amendment, suggesting that implied consent statutes, with their attendant penalties for refusal, remain viable." The U.S. Supreme Court stated this in both the Birchfield and McNeely cases.

The Washington Supreme Court held that "[b]ecause we determine that, even after McNeely and particularly after Birchfield, a driver's refusal is admissible as evidence of guilt under the implied consent statute, we reverse the district courts' suppression of the evidence in both cases." The court remanded the cases, stating that Adams refusal could be used against her as could Baird's. The court also did not find that Baird's argument about coercion persuasive.

Birchfield has had a significant impact on DUI law in recent months, as these cases demonstrate. Whether there will be further changes as a result of this landmark decision remains to be seen. If you or a loved one has been charged with driving under the influence, please do not hesitate to contact Wolff Defense. Aaron Wolff is an experienced and knowledgeable DUI attorney who is dedicated to fighting for his client's rights. Call his office today at (206) 504-2500 or online.