Recent Challenges to Breath Test in DUI Cases

Washington State law requires a person to provide a breath sample to determine alcohol concentration if a police officer suspects they are driving under the influence. A person may refuse to take the test but will face enhanced penalties and a police officer may seek a search warrant for the person's blood. Generally, after an arrest on the side of the road, police officers are required to transport the person to the police station and read the "Implied Consent Warnings for Breath" if they are seeking the suspect's breath test results. The "Breath Warnings" advise a person of his rights and the penalties he could receive if the results are .08 or higher. The subject signs the "Warnings" and his signature is used as an acknowledgement that he made an informed decision to either provide or refuse a breath test.

On December 6, 2012 the marijuana legalization Initiative 502 became law. It permits the use and possession of marijuana for adults 21 years and older. In response to I-502, the Washington State Legislature changed the DUI statute making it illegal to drive a motor vehicle after using marijuana with 5 ng or more of THC in a person's blood. The new law has not caught up with most police agencies and they are still using the old DUI "Warnings."

The old DUI "Warnings" do not inform suspects of the driving license suspensions associated with being under the influence of marijuana. The Defense Bar started challenging the breath test results due to the inaccuracy of the warnings. Some Judges have suppressed the breath test results but most have yet to decide on the issue. If granted, the remedy is suppression of the BAC results, not an outright dismissal of the case. In many instances, the Prosecution can still prove a DUI charge without a breath test result, but you have a greater chance of having the charge reduced. Contact your attorney to determine if your Judge has heard this issue.

Categories: Criminal Defense, DUI
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