Breath Test Refusal in DC DUI Cases

After an arrest has taken place, the driver will be asked to submit to a breathalyzer test that could be used as evidence against them. Regardless of what happens at the station, because that person has been arrested they will most likely still have to go to court, even if they submit a breath test and their breath test result is zero.

Once the breath test has been taken or there has been a refusal, the individual will most likely be given a court date and released from the police station on their personal promise to appear for their initial hearing. Once they are given a court date, their DC DUI lawyer can begin the process of speaking with prosecutors, looking at the evidence, and analyzing the evidence to see where the prosecutor’s weaknesses are and what the possible outcomes could be.

That could include the possibility of getting the prosecutors to completely dismiss the person’s charges, reduce the charges, or reduce any possible jail time to which a person may be exposed.

Implied Consent

Under D.C.’s implied consent laws, a person who has been arrested for DUI is considered to have given consent to submit to a breath test simply by driving on D.C. streets. A person does have the right, however, to withdraw that consent and decline when asked to take a breath test. The police are required to inform a person in that situation that by withdrawing that consent and refusing to submit to a breath test, they face certain penalties.

Those penalties include a mandatory revocation of their driving privileges for one year. The person may not be eligible for certain favorable negotiated agreements with the prosecutor that could result in having their DUI charges dismissed.

Conditions of the Test

The most important thing for a person to know is that there is no standard determination as to whether it is a good or bad idea to submit to a breath test. If a person has been drinking heavily and submits to a breath test, and their breath test comes up at 0.20 or higher, that person will face a mandatory minimum of 10 days in jail if convicted.

That period of jail time will increase if a person had a prior DUI conviction within the past 15 years. If a person has been drinking heavily and refuses to submit to a breath test, the person would not be facing any mandatory minimum level of jail time as a result of their level of intoxication.

If a person has only been drinking minimally, and is around a level of .08, submitting a breath test may make that person eligible for favorable negotiated resolutions or deferred sentencing. Under official policies by the D.C. Attorney’s General’s Office, if a person refuses to submit to a breath test, they most likely would not be eligible for those favorable negotiated resolutions.

There are both potential consequences and benefits for refusing to give a breath test depending on an individual’s situation. Only the person involved can make that decision, based on their situation, as to whether it is a good idea for them to provide a breath sample.

Impact of a Refusal

The laws in D.C. do not change the criminal penalties when a person refuses a breathalyzer test. For example, a first-offense DUI carries a possible maximum penalty of 180 days of jail and a minimum penalty of zero days in jail. Refusing a breath test does not change those first-offense penalties. The same thing applies to a second or a third offense.

The increased penalties that a person would face for refusing to take a breath test are an increase in their mandatory license revocation period from six months up to one year and the possibility that a person may not be eligible for certain favorable negotiated resolutions on a first-offense DUI.

On second offense DUIs and subsequent DUIs, there is no increased penalty for refusing a breath test. However, on a second or subsequent DUI, providing a breath test and having that breath test result be higher than 0.08 would be solid evidence that could result in a person facing mandatory jail time because of their prior DUI.

Refusing a breath test does not carry any increased criminal penalties for a first-offense DUI or any subsequent DUI.