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Hi I’m Roger Priest with VanWa Legal PLLC and I am a local criminal defense attorney in Vancouver Washington. Today I’m going to answer a question I often receive from potential clients who have been arrested for a dui and that is, “Should I take the breath test?” This question often comes after a client or potential client has been arrested for dui and taken to the station and asked to be placed in contact with a lawyer before deciding whether to take a breath test for the officer. I think most clients have been told from one person or another conflicting information and it can be quite confusing, what they should do now. I should start off by saying that there is no silver bullet when it comes to this question. There is no answer I can give anyone that’s going to guarantee that they’re going to avoid a DUI. And, in many, many instances no matter how they proceed, the chances are that they’re going to be prosecuted and may be convicted of a dui. But a client has two essential choices. First, you can take the breath test or you can refuse the breath test and both come with unique and separate consequences. First, if you choose to take the breath test obviously you are providing evidence against yourself that can be used by law enforcement to prosecute you for the crime of dui. And if you blow over the legal limit, you give them evidence which is in fact very strong that would make it very at least much easier for them to convict you of a dui added subsequent trial. However if you refuse the breath test, Washington law actually provides for enhanced penalties speaking just for a first dui as an example. If you are arrested for a dui and you have a blood alcohol concentration of just above a 0.08 and you take the breath test the mandatory minimum sentence for that if convicted is one day in jail. But if you refuse to take the breath test and then are convicted of the dui you’ll actually be required to spend two days in jail additionally instead of a 90-day license suspension you would face possibly a two-year license suspension. So, the punishment can be worse if you refuse.

However, if you refuse to take a breath test it can in certain cases cause the prosecution to not have perhaps one of the most vital pieces of information that they could use to try to convict you which is a positive breath test above the legal limit. Now you should know the prosecutor can comment at a trial on your refusal to take a breath test so if you refuse to take a breath test, they can make an argument to the jury that you refused the breath test because you knew you were impaired and that that is in and of itself proof of impairment. However, that evidence may not be as strong as the breath test itself. And you can always argue the contrary argument that there is a potential reason that you did not take the breath test. That is not in and of itself evidence of guilt. People choose not to take breath tests for a myriad of reasons. I often speak to clients who have been charged with a dui who refused a breath test but they refused a breath test until they could speak to an attorney. So while at the station they asked to talk to an attorney and after many, many phone calls they weren’t able to reach an attorney and then they refused it well in that instance, a seasoned trial attorney can argue that they didn’t refuse to take the test full stop but rather wanted the advice of a qualified attorney before making that decision. So this answer may not be as satisfying as one might want because again there is no silver bullet in a dui case. However I hope this gives you a little bit more insight into the very crucial decision of deciding whether to take a breath test or not. When arrested for a dui if you have more questions about your particular dui case, give us a call at VanWa Legal. I’d be happy to discuss your case with you. Thank you have a nice day.

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