One of the biggest issues we see for people defending themselves against DUI charges is the traffic stop itself. People panic. They escalate an already tense situation by acting erratically or refusing police orders.
It’s important to know your rights and how to conduct yourself before you find yourself pulled over on the side of the road with flashing lights in your rearview mirror. Not only are you looking at the possibility of being arrested and taken to jail, beyond that you’ll be facing mandatory fines, costs, and a potential loss of license which could ultimately affect your job. Before you end up in this situation, read below and prepare yourself before it’s too late.
What are Field Sobriety Tests?
The first thing you should know about “field sobriety tests” is that they DO NOT predict your sobriety at the roadside. When the National Highway Traffic Safety Administration (NHTSA for short) went about designing a process to assist law enforcement with assessing persons believed to be under the influence, they asked for a set of tests to measure roadside “sobriety.” The result? The contractor that NHTSA was working with said “it cannot be done.” Instead, the best that they could do was design a set of standardized tests with a set number of clues and then correlate how many clues you observe per test with what a person’s breath test reading might be. Over the years these tests have not changed all that much, but they consist of 3 primary tests: Horizontal Gaze Nystagmus; Walk & Turn; and One Leg Stand. This can also include a roadside portable breath test (which is NOT the same as a breath test you’ll be asked to take at a station).
Are You Required to Take a Field Sobriety Test?
The simple answer is no. There is no legal obligation in Washington state for you to take a field sobriety test. A police officer has no right to force you to take one. If they ask, you can refuse.
You should be aware that from the moment you are contacted the officer is “gathering information.” That does not change when you refuse to take field sobriety tests. Recent cases have taught us that your refusal to take field sobriety tests can be used against you and likely will be, but this doesn’t mean you should take them.
There are many reasons why we suggest NOT to take these completely voluntary tests: they don’t show or measure your sobriety at the roadside, they are often performed in less than optimum conditions, there are too many outside factors that may affect them, and the list goes on.
So what happens when you refuse? In most cases the officer is going to place you under arrest, but he’ll have done so with far less evidence than he would have had if you had taken the tests.
Are You Required to Take the Breath Test in Washington?
Another common question drivers have is do I have to take a breath test? Let’s look at this from a historical perspective. When you provide a sample of your breath it is a “search.” As most know at a basic level, a search has to be reasonable. Washington, as well as other States, have made these searches reasonable by drafting laws that note that by virtue of having a license or using the roadway you have given your “implied consent” to this search. This means that by law, you have consented to give a breath sample.
However, this DOES NOT mean that you have to take a breath test. You should ALWAYS ask to speak to an attorney if you are arrested for a charge of DUI and seek the advice of a lawyer BEFORE you make a decision to take a breath test. However, because a lawyer may not always be available you should also understand your choices.
If you elect to take a breath test AND your reading is above the legal limit (.08), then by law the Department of Licensing has the right to suspend your license for 90 days. If you refuse to take the test then the Department of Licensing has the right to suspend your license for 1 year and that refusal to take a breath test can be used against you in court.
You should know the consequences of either blowing above the legal limit or refusing a breath test are not immediate. In other words, your license will not be suspended on the spot. Instead, you will have a 7 day window following your arrest to request a hearing to challenge either length of suspension. You can do this by requesting a hearing either through the paperwork given to you by the officer OR by requesting the hearing online through the Department of Licensing. Our team will prepare this paperwork for you if you contact us within the first 7 days after your arrest. Once prepared and sent in, your license suspension will NOT take effect until you have had your hearing and ONLY if you lose that hearing.
So should you take a breath test? The answer to this question is more complicated. Taking a test gives evidence to the police. Breath testing machines are constantly being challenged in courts throughout Washington and other States for faulty operation, whether that be software or hardware issues; taking a test means you’re trusting a machine that breaks, requires repairs, and has been shown to not always be accurate. It also means subjecting yourself to the “one size fits all” idea that everyone who is a .08 is “too drunk to drive.” The reality is that this is not true. Other factors can also affect whether to take a breath test, such as were you on probation for another case?
Our advice, if you’re ever arrested for DUI? Request a lawyer as soon as you can to help you with making a decision to take a breath test.
Should I Answer the Officer’s Questions During My Stop?
Under the law in Washington State you have no obligation to answer an officer’s questions during a roadside stop, other than producing identification. There are times when you may be asked, “where are you going?” “where are you coming from?” “have you been drinking?” etc. You should know, you are not required to answer any of these.
People often think they have nothing to hide but officers are “evidence gathering machines” and well-equipped with ways to interrogate you on the spot and get certain information out of you that may otherwise seem innocent.
What Should You Do If You’re Charged With a DUI?
Your first action after being charged with a DUI should be to immediately contact NG Law. Your story matters to us. We understand the very severe penalties for Driving Under the Influence charges in the state of Washington. It’s important to retain a dedicated and experienced defense team early in the process to preserve your case and protect your freedom.