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What is the Implied Consent Law?

Any person who operates a motor vehicle in the State of Washington is deemed to have given consent to a test or tests of that persons breath or blood for purposes of determining alcohol concentration or the presence of any drug, if the person has been lawfully arrested for driving under the influence or being in physical control of a motor vehicle.

In most cases of suspected alcohol DUI, the evidential test is a breath test offered only after the person has been arrested for DUI.  The evidential breath test is usually located at a police station or a jail.  The evidential breath test is not the portable breath test some officers utilize in the field during administration of the field sobriety tests.

The evidential breath test consists of two samples of the person’s breath blown into the instrument in sufficient amount to complete a measurement of each sample.  The operator must be certified to operate the breath test machine, and all of the protocols must be met in order for the breath test result to be admissible.  Prior to the first completed sample, there must be a minimum of a fifteen minute observation period to make sure that the subject does not have any foreign substances in their mouth, and the subject must be provided with their Implied Consent Warnings.

The Implied Consent Warnings are derived from R.C.W. 46.20.308.  Usually, the officer will read these warnings out loud and ask you to sign acknowledging that he or she has read them to you, or, if you are kept in handcuffs, the officer will note on the Implied Consent Warning form that you are unable to sign because you are in handcuffs.

The BAC test as it is called, is a voluntary test in most cases.  Your decision whether or not to submit to the breath test has consequences on both your driving privilege, as well as potential penalties if you are convicted of DUI.  If you are confused by these warnings, and these warnings are confusing, you should tell the officer you do not understand the Implied Consent Warnings, and ask for an opportunity to speak to an attorney on the telephone.

Depending upon the jurisdiction and the particular officer involved, you may simply be handed a telephone directory.  Most DUI arrests occur outside of normal business hours so you should insist that the officer get in telephone contact with an “on call public defender”, or you may contact Barbara Bowden on her cell phone at (253) 405-9158.

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If this is the first time you have been arrested for DUI, if you submit to the breath test and you are over the legal limit, the suspension on your driving privilege will be either for 90 days or one year, depending upon the alcohol level measured.  If you refuse the breath test, and you are convicted of DUI with a Refusal, the length of license suspension is two years.  In any event, you may be eligible to obtain an ignition interlock license during any period of suspension, assuming that your privilege to drive has not been revoked for some other reason.