When most people get arrested for a DUI, they are nervous and do not know what they should do or say when interacting with the police. One of the main questions a person may have is: Are you required to submit to a breathalyzer test in DC?
The answer is no. Police officers must obtain a person’s consent to submit to a breathalyzer test after a DUI arrest occurs. However, if a person refuses to submit to a breath test in DC, his license may be revoked for one year, and the refusal could be used against him at trial as consciousness of guilt.
There is a fine line between cooperating with the police and ensuring that you do not provide evidence that could negatively impact your criminal case. One way to do this is knowing your rights and the consequences of submitting to a breath test.
D.C. Implied Consent Act
After a person is arrested for a DUI in DC, the police must read the D.C. Implied Consent Act, which states that any person who operates a vehicle while in DC has given his consent to chemical testing of his blood, breath, or urine to determine if he is under the influence of alcohol.
A person does not have the right to choose which kind of chemical test to submit to, but the most common is a breath test.
However, a person has the right to refuse these chemical tests. The police should provide the implied consent form, and the arrestee can simply check the box that they do not consent without any further explanation.
The only time a person may not refuse to submit to chemical testing is if an accident occurs. In most of these cases, the police will request a blood sample at the hospital, which can only be administered by a doctor or nurse. If blood is taken, a person has the right to request an additional sample for private testing.
There are consequences for refusing to submit to chemical testing. The DC DMV can revoke a person’s license or his privilege to drive in DC for one year based on refusing to submit to a breathalyzer. However, this revocation is not automatic, like the police often insinuate after a DUI arrest.
A person has the right to schedule an adjudication hearing at the DMV to prevent revocation. The hearing must be scheduled 10 days after the arrest date for DC license holders or 15 days after the arrest for out-of-state licenses.
At the hearing, the police officer who conducted the breathalyzer test must prove by clear and convincing evidence that the driver:
- Operated a motor vehicle while apparently under the influence of intoxicating liquor or a drug, or while impaired by the consumption of alcohol, or while apparently physically or mentally unqualified to operate a motor vehicle by reason of diabetic coma, or epileptic or other seizure; and
- Refused to submit to two (2) chemical tests as required by the District of Columbia Implied Consent Act.
If the hearing examiner finds that the officer cannot meet this burden, a person’s DC license or privilege to drive in DC will not be revoked.
Often, the police officer fails to appear for the hearing, and the hearing examiner cannot take any action towards a person’s license. That’s why it is important to schedule a hearing within the timeframe to give you the best chance of not having your privilege to drive or license revoked, especially if you refused to submit to the breathalyzer.
Impact of Refusal at Trial
When a person refuses to submit to a breath test, the prosecutor can use this refusal against him at trial. There is a presumption that if a person refuses to submit to a breath test, the reason for the refusal is because he did not want to provide evidence that would show he was under the influence of alcohol. However, this is not a mandatory presumption and can be rebutted.
For first-time DUI offenders, the government must show more than just the refusal to prove a person is intoxicated. Common indicators the government relies on are the alleged odor of alcohol, Standardized Field Sobriety Test performance, and any other observations the officer may make.
For second and subsequent DUI offenders, a stricter standard applies if a person refuses to submit to a breath test. A jury may presume a person is intoxicated solely based on the refusal. There is a rebuttable presumption which means that unless evidence is presented that proves the person was not intoxicated, a jury can find him guilty of a DUI based on the refusal to submit to a breathalyzer alone.
That’s why it is important to have an experienced DUI attorney to argue against this presumption. In most cases, the less evidence the government has against a person arrested for a DUI, the better. Even though refusing to submit to a breath test could have negative consequences, the benefits may outweigh the costs of the overall criminal case.
The Meaning of Alcohol Levels
If a person does submit to chemical testing, he will receive a score that indicates the amount of alcohol in his system. A blood or breath alcohol level, or BAC, of 0.08 or greater, or a urine alcohol level of 0.10 or greater means you are over the legal limit to operate a motor vehicle in the District of Columbia.
DC has a zero-tolerance policy for individuals under the age of 21— meaning no alcohol can be found in the system otherwise a DUI charge will occur.
Even if a person’s BAC is less than 0.08, he can still be considered intoxicated and charged for a DUI, DWI, or OWI. Only when a person’s BAC is less than 0.05 of blood or breath, or 0.08 of urine is there a presumption that the individual was not intoxicated. This presumption is also rebuttable. But in this case, the shoe is on the other foot, so to speak.
Through other evidence, the government must prove that the person was, in fact, intoxicated without relying solely on the breathalyzer score.
If you have been arrested for a DUI and refused to submit to a breath test, contact an experienced attorney at Bruckheim & Patel for a free consultation.