If I'm stopped for driving under the influence, can I talk to an attorney before I decide whether to take a breath, blood, or urine test?
A DUI is a serious offense in Washington State. The State Legislature has determined that this gross misdemeanor offense carries mandatory jail and fines upon conviction with steps up in fines and jail for subsequent convictions for DUI or similar offenses. That list of similar offenses is very long. Deciding to speak to a qualified attorney about the situation is a very good idea and could save you thousands of dollars and weeks or years of headaches dealing with administrative and criminal consequences. Driving under the influence can mean many things: you had too much to drink to drive safely, you’ve consumed a cannabinoid that has impaired your ability to drive, or even a medication you are taking has impaired your driving. Cannabinoid’s include products like marijuana, hash oil or some other similar product, or even a combination of products that impairs a person’s ability to operate a motor vehicle. Just feeling “good enough to drive” is not a defense to a DUI accusation.
There are so many things that might go through your head when you’ve been stopped by police for a possible DUI. Deciding to ask for an attorney in these situations should be a decision made ahead of time. Should you be stopped by police and you have been drinking or consuming products like those listed above, or even if you are only accused of consuming something, telling the police you want to speak to an attorney is your best option. You may ask to speak to an attorney at any time during an interaction with an officer. An attorney can guide you, they will help you avoid doing or saying things that might compromise an otherwise valid defense to your current situation.
While you do have a right to an attorney at all critical stages of a criminal proceeding before, during, and after a trial, you do not have an absolute right to speak to an attorney during a DUI investigation. You cannot delay an investigation just by saying you have not spoken to a lawyer yet. The police and yourself only need to make reasonable attempts to contact an attorney when you request to speak to one before the police can move forward with their investigation. So, while you may request an attorney, if all the lawyers you attempt to call do not answer then law enforcement will move forward with their investigation for breath or blood testing.
While you may refuse a breath test with some serious negative administrative license consequences, you may not refuse a blood test if the officers have gained a valid warrant. An officer will always ask for a voluntary blood draw. When it comes to your blood, however, if you say you are not willing to give a blood sample, the officer will be forced to get a warrant for your blood. A blood test can reveal many things about you so forcing you to give up your blood is a serious request. There is no implied consent related to you giving up your blood for a test like there is with a Breath Alcohol Content (“BrAC”) sample (for more information in Implied Consent, see the answer to the question “Do I have to take a breath/blood/urine test if I’m stopped for driving under the influence?”). Talking to and being honest with an attorney about what you have consumed prior to your arrest will be critical to you making the choice to deny access to your blood and forcing the officers to get a warrant or allowing a voluntary blood draw.
Officers in Washington usually will not request a urine sample. However, the law on this is still very open as to whether a warrant is required for persons who are not currently on probation or under some form of court supervision. If in doubt, talking to an attorney before you give a urine sample is critical to keeping your probation intact or avoiding continued criminal conviction on a urine sample alone.
Do I have to take a breath/blood/urine test if I’m stopped for driving under the influence?
A breath test is the least invasive from of physical investigative technique law enforcement can use to find your Breath Alcohol Content (“BrAC”) other than visual observations. Roadside tests that officers ask you to perform do not give a measurement of BrAC. They are visual observations. Therefore, a BrAC test at the police station is the most common form of alcohol measurement taken by law enforcement. All persons who are licensed to drive a motor vehicle in Washington State agree to submit to breath testing when the State issues their license. Law enforcement may only do this, however, if the request is a reasonable request for that sample. This is called Implied Consent. This means that an officer cannot force all persons they encounter to blow into their measuring devices. However, choosing to not blow will require the Washington Department of Licensing to suspend your driver’s license automatically and without possibility of appeal, even if you are not convicted of the criminal offense. There must be probable cause for an officer to reasonably believe that you are under the influence of alcohol for a BrAC request to be reasonable.
A warning about roadside breath tests: While you have an obligation to complete a BrAC sample, that sample is only required when taken under certain conditions. Roadside devices used by law enforcement are not part of that obligation and they are not admissible at trials. However, roadside blow tests may be admissible for the purposes of other parts of the criminal and administrative proceedings. You may refuse to blow into the mobile machines used by officers out in the field. You may not refuse without additional administrative penalty, to blow into the BrAC machine at a police station.
You are not under the mandatory implied consent to give your blood or urine as you are with BrAC testing. If you refuse to voluntarily give your blood, law enforcement must show a judge though a warrant application that their observations meet probable cause to require your blood to be taken and examined by investigators, including scientific examination and analysis. This burden, while not the highest in criminal law, does force law enforcement to put down exactly what they claim to observe or what may have been reported to them. That information receives review by a judge and that judges approves or denies the warrant application. It is only when a judge approves the issuance of the warrant that Law Enforcement may take your blood. There are many elements to this process. An experienced attorney will be able to point out and argue valid issues even if you are forced to give up your blood.
During a DUI/DWI stop, can a police officer ask me questions without reading me my rights?
There are various levels of police contact with the public. During a DUI stop officers are in the process of an investigation of what happened or what is likely to have happened. They will ask many questions before reading a person their constitutional advisement. An officer may continue to ask questions of persons; however, no one is under any obligation to answer those questions whether you have had your rights advised or not. An officer is only obligated to read a person their constitutional rights when that person is under arrest for suspected criminal activity. The purpose of the rights advisement is not to create a line of what is admissible in a court of law. Rather, the rights advisement creates a clear indication to the accused that without a doubt, anything that is said from that point forward is likely admissible in court. From that point forward, you have certain rights that you must be made aware of now that you have been detained for a criminal offense.
So, the answers you give to officers before a reading of your rights are not going to necessarily be excluded from a trial if they are relevant to the charged offense. Most criminal defense lawyers would strongly caution speaking with police at all during any type of investigation to avoid potential self-incrimination. However, an experienced attorney can help you understand the impact of statements you may have made before and after rights advisement.
I've been charged with drunk driving. Should I get a lawyer?
YES! The financial, personal, and professional impacts on persons who are even accused of drunk driving can be life altering. Seeking competent legal counsel from persons who have been in the courtrooms and worked with the prosecutors who you will be pitted against is crucial to finding a positive resolution to the case. What positive looks like requires an examination of all the relevant facts. When you meet with a lawyer about your situation, your honesty is important. Additionally, any information about persons who might have been at the scene, the area where the police observed you, or other critical factors like your medical conditions, diagnosed or not, that might have an impact on the case are things you absolutely should share with your attorney. Speaking with an experienced attorney is critical to your long-term ability to drive again with a fully endorsed license. Not each situation is the same; let an attorney help.