DUI: To Blow or Not to Blow


By Andrea Kim

The decision whether or not to submit to a Blood Alcohol Content Breathalyzer test is one that many people have to make prior to being able to speak with an attorney about the potential consequences. There are multiple stages during a DUI investigation when the driver needs to make a decision about whether or not to submit to tests. The first opportunity a driver has an option to submit to tests is on the side of the road when they are first pulled over before being arrested, that is referred to below as “on scene.” Then once a driver is arrested for Driving Under the Influence (DUI) they are taken to a station or location with a breathalyzer machine, that is referred to below as “at the station.” If a driver is arrested for being intoxicated by a drug or something other than alcohol, or if a driver refuses a breathalyzer test, then they may be given the option to submit to a blood draw to test the alcohol or drug content in their system, that stage is referred to below as “blood draw at hospital.”

On Scene:

-          The first thing to understand about the roadside investigation is that an officer cannot arrest you for DUI unless they have probable cause to believe that you are driving intoxicated. Probable cause means “a belief based upon facts and circumstances within knowledge of the arresting officer that would persuade a cautious but disinterested person to believe the arrested person has committed a crime.” Henry v. United States, 361 U.S. 98, 80 S. Ct 168, 4 L.Ed.2d 134 (1959). This is a relatively low level of evidence that an officer has to find in order to arrest a person for DUI but they do have to find some evidence. Because of the requirement that they have to have probable cause to arrest a person for DUI, the less evidence you provide them prior to arresting you, the better. The only time that I recommend clients submit to all of the tests described below is if they are completely sober. If a client has consumed any alcohol or drugs, I the recommendations below apply, EVEN IF THE PERSON THINKS THEY ARE NOW FINE TO DRIVE.

-          When a person is first pulled over and being investigated for DUI, the officer will likely ask if the person has had anything to drink, or if the person has consumed any drugs. The driver should ALWAYS refuse to answer that question or answer it in the negative. Officers use a person’s admission of consumption as evidence to develop probable cause to arrest in every single case a person admits to consumption. A vast majority of people admit to only having consumed one or two alcoholic beverages but that is still sufficient for an officer to use to develop probable cause to arrest that person for DUI. That is why you should always tell the officer you have had nothing to drink or refuse to answer that question.

-          Another area that officers use to develop probable cause is when they ask you for your license, insurance, and registration. Officers observe if you struggle at all with that command or if you fumble, have tremors, drop, or otherwise struggle with getting those documents to hand to the officer. You should not refuse to hand those documents to the officer but you should be very aware of your movements and actions while doing so. The more easily accessible you have those documents when driving, the better.

-          Once an officer asks you to exit your vehicle, they are also going to observe your every move to see if you are stumbling, leaning on your car for balance, or if you sway or trip. Another reason officers ask you to step out of the vehicle is so that they can determine if the “odor of intoxicants” is coming directly from you or if it is coming from the vehicle.

-          Now we are getting to the point on the roadside where you have the ability to choose whether or not you want to submit to some tests. Know that the entire purpose for having you complete the tests is so that the officer can determine if you are intoxicated and his or her observations during these tests are used to develop probably cause to arrest you for DUI. Because of that, my advise to clients is always to refuse to complete the tests on the side of the roadway. These are called Standard Field Sobriety Tests or SFST for short. These tests include the Horizontal Gaze Nystagmus Test (HGN) where they have you follow their pen. There is also the Walk and Turn test where they have you take 9 heel to toe steps, turn in a very specific way, and then have you take 9 heel to toe steps back to the start. There is also the One Leg Stand test where they have you balance on one foot for a period of seconds. Those are the three main tests that they have drivers complete almost every time but they also have people complete a test where they count to 30 so they can determine if your internal clock is running quicker or slower than normal. They also sometimes have people try to touch the tip of their nose with one finger to test their hand and eye coordination. Every single one of these tests has 0 to 6 points possible, typically if they find that a drive fails more than 2 points TOTAL between all tests, then they have probable cause to arrest for DUI. There are literally dozens of things that a driver can do incorrectly to get a point on EVERY SINGLE one of these tests. People who are completely sober have failed these tests. Because of that, unless you are 100% sober and have consumed no alcohol or drugs, you should never submit to these tests.

-          Finally, on the roadside, an officer will sometimes ask a person to submit to a small breathalyzer test called a Portable Breathalyzer Test (PbT). These portable breath test machines have been found to be so unreliable that they are NOT admissible in court. The sole purpose for this test is to give the officer more evidence to develop probable cause to arrest the driver for DUI. Therefore, unless you are 100% sober, you should NEVER agree to take the PbT on the roadside.

-          Unfortunately, as described above, probable cause is a pretty low standard so even if a driver refuses all of these tests on scene, an officer can arrest them for DUI if they think they have enough evidence that the person is driving while intoxicated. Evidence that they regularly arrest on before they even get to these tests include, blood shot and watery eyes, the odor of intoxicants coming from the driver, if the person fumbled for his or her license, if the person was swerving or was in an accident, and if the person admitted to consuming intoxicants.

At the Station:

-          Once an officer arrests a person for DUI, they then take them to a station or other location where there is an official breath test machine. In Washington state, most jurisdictions are currently changing from the old machine, the DataMaster, to a new machine called the Draeger. This test only tests for alcohol, not any other drugs. These results from these machines are normally admissible in court unless they are malfunctioning in some way or the officer messes up the procedure in some way. In Washington state, a prosecutor can prove a DUI case in two different ways. The first is under the “per se” prong of the statute which only requires them to prove that the person was driving and that the results of this test showed they were intoxicated. That is it! The second way the prosecutor can prove a DUI case is under the “affected by” prong which requires them to prove the person was intoxicated while driving based on the officer’s observations of the driver as evidence of intoxication. That is clearly a harder to case to prove than the first prong that just requires the results of this test. That is why this test is so crucial for officer and prosecutors and so damning for defendants. This is the single most important piece of evidence that the officer can obtain from the driver of the vehicle if they are under the influence of alcohol. 

-          Because the results of this test can be so important, it may be a good option for a driver to refuse to submit to this test. Every driver in Washington State has the option to refuse to submit to the breath machine test at the station. HOWEVER, if a driver refuses to submit to this test, his or her license is automatically suspended for one year. That suspension still occurs, EVEN IF THE DUI CHARGE IS DISMISSED! Every driver needs to consider what matters most to them, not being able to drive for a year or giving the officer and prosecutor the best evidence to use against them in the DUI charge. There are some people that risk losing their career or even being deported if they are convicted of a DUI and those people may choose to refuse the breath test and accept the one year license suspension. Every single person arrested for DUI has the option to call an attorney before they officially tell the officer if they are going to submit to or refuse the breath test and every person should take that opportunity to talk through their specific circumstances with an attorney, even if it is the local public defender.

Blood Draw at the Hospital:

-          If a person refuses to submit to a breath test at the station as discussed above, then the officer could obtain a search warrant for a blood draw to determine the blood alcohol content in their system. Officers also obtain blood draws when they are suspicious that a person is under the influence of drugs alone or in addition to alcohol. There are two separate circumstances when an officer is obtaining a blood draw, one is once they have obtained a search warrant to draw the person’s blood, and the second is if they ask the person to consent to a blood draw.

-          If an officer has a search warrant to obtain a blood draw from a driver, then the driver does not have the option to refuse to submit to that test. A search warrant for a blood draw is similar to a search warrant to search a house or car and the person is not allowed to refuse to comply with the search warrant. A good defense attorney may be able to challenge the warrant at a later date and then have the results of the blood test thrown out of court if the warrant was not valid.

-          If an officer does not have a warrant and is just asking a driver to submit to a blood test, then the driver does have the option to refuse to submit to that test. HOWEVER, the minimum one year license suspension would apply to that driver the same as it would to a driver refusing to submit a breath test as described previously.

-          NO MATTER WHAT, if a driver is submitting to a blood draw either pursuant to a search warrant or because they consented to the blood draw, every driver has the right to have an independent test conducted of their own on the same blood draw. If a driver would like to take advantage of the option to have an independent test completed, then they should speak with an attorney, even if it is the local public defender, to ask about the procedure for doing that in their local jurisdiction.


If you or a loved one is being investigated for DUI, you need an experienced, aggressive, and knowledgeable defense attorney. 

Call Gause Law Offices today for a free consultation – 206-660-8775.