Anyone stopped and arrested in Seattle or anywhere throughout Washington State and arrested for DUI will be transported back to the police station (or hospital) and asked to submit to an evidentiary alcohol test. Prior to being asked the question, the DUI suspect must be adivsed of their "implied consent warnings." These warnings, statutory in scheme, must advise a driver of their two options: Take the test or refuse it. (See statute). There are consequences to each choice. For a refusal, a person's driver's license, permit or privilege to drive will be revoked for at least a year and the refusal may be used against them in a criminal proceeding (to prove consciousness of guilt). If a person takes the test, and the level is above the legal limit, then the driver faces a 90 day license suspension.

As a former DUI prosecutor and Seattle DUI attorney for over the past decade, I have been asked countess times whether a person should take or refuse the test. It is not a simple answer. Many of my esteemed colleagues have weighed in with their differing opinions. Before I reveal my preference, let me first discuss the pros and cons to each decision.

For a refusal, the biggest positive is that there is no evidentiary alcohol reading. This makes the DUI chage much more difficult to prove. The downsides are numerous. First, there are substantially greater mandatory minimums for people who refuse the test (including additional jail, fine and license revocation) if convicted. In addition, a prosecutor could be allowed to argue the reason the person refused the test was because they knew they were guilty. Finally, a refusal is hard to get suppressed at trial unless there are some major confusion issues expressed by the accused.

In comparison, if the choice is to take the test, there are several potential positives. A person could be under the legal limit. While they still might be charged with DUI (yes, that does regularly happen), if it is below or near the legal limit that will definitely increase the possibility of much favorable outcome. In addition, there are many potential challenges to getting the test suppressed due to failure to follow protocols and issues surrounding the machine. The major downside to taking the test is that jurors give great deference to the results in determining the guilt of the driver accused of DUI.

Taking all the above into consideration, it is my belief that a person should take the test. This is not a universal poistion as each case is unique and have several factors to be weighed. But for general advice, I suggest anyone arrested for a Washington State DUI invoke their right to an attorney as soon as they are placed in custody and ultimately elect to take the test. That is my two cents.