Understanding Washington's Implied Consent Law

Washington has a law called the Implied Consent Law (RCW 46.20.308). Sometimes you will hear it referred to as Initiative 242. Under this law, everyone who operates a motor vehicle within this state is deemed to have given consent to a test of his or her breath or blood to determine alcohol concentration or the presence or any drug. Because you do not have to give permission for such testing, your consent is implied by the law.

Call 425-361-0865 to speak with experienced criminal defense lawyer John F. Segelbaum. He will help you understand your rights under Washington's Implied Consent Law and provide an aggressive DUI/DWI defense. John regularly defends clients throughout Snohomish County and King County, including the communities of Edmonds, Everett, Lynnwood, Shoreline, Mountlake Terrace, and Bothell, among others.

In order for the Implied Consent Law to apply, several things must occur:

1. You must have been arrested for an offense and the arrest must be lawful.

2. The arresting officer must have reasonable grounds to believe that you were driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug.

3. The officer who directs the administration of the test must also have reasonable grounds to believe that you were driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug.

4. The test must be of your breath. However, in the event that you are incapable of providing a breath sample because of physical injury or limitation or if you are being treated at a hospital, ambulance or similar facility or if the officer has reasonable grounds to believe that you are under the influence of a drug, a blood test can be required.

5. The officer has to advise you of warnings known as Implied Consent Warnings. The warnings tell you that:

  • If you refuse to take the test, your license, permit of privilege to drive will be revoked or denied for at least one year.
  • If you refuse to take the test, your refusal can be used against you in a criminal trial.
  • If you take the test and the result is 0.08 or more if you're age 21 or over, or 0.02 if you are under 21, your license, permit or privilege to drive will be suspended, revoked or denied for at least 90 days.
  • You have the right to additional tests administered by a qualified person of your own choosing.

If you refuse the breath test, or if you take the test and have results of 0.08 or more if you're 21 or older (0.02 if you are under 21), the officer will notify the Department of Licensing and DOL will notify you of the suspension or revocation of your license or privilege to drive. (You don't have to have a valid Washington license to get suspended or revoked). The suspension or revocation will go into effect 60 days after the date of arrest and is in addition to any license consequences resulting from a criminal conviction in court.

Driver's License Suspension Hearing Required in Washington

You have a right to a hearing before the suspension or revocation goes into effect. The officer is supposed to provide you with a Driver's Hearing Request form to request the hearing. Sometimes they forget to do this. You should in any event request a hearing. You can do this by mailing in the completed hearing request form, sending a letter to DOL requesting a hearing (Department of Licensing, Hearings and Interviews, P.O. Box 9048, Olympia, WA 98057-9048) or requesting a hearing via internet. (www.dol.wa.gov/ds/hrnginfo.htm). The hearing request must be postmarked within 30 days of the date of arrest (except in the case of a blood test) and accompanied by a $200.00 hearing fee (unless you request a waiver of the fee due to indigency.)

Once you request a hearing, the DOL must hold a hearing before the effective date of the suspension or revocation. The hearings are not held in court with a judge. They are conducted by a Department of Licensing Hearing Officer and are usually held over the telephone, although you can request an in person hearing. The officer is not required to attend but had to submit his police report to the DOL. (You have the right to subpoena the officer to testify, which may or may not be a good idea). At the hearing, the Hearing Officer will determine if:

1. There was a lawful arrest.

2. The officer had reasonable grounds to believe you were Driving or in Physical Control of a Motor Vehicle while under the influence of intoxicating liquor of drugs.

3. You were properly advised of he Implied Consent Warnings.

4. A breath or blood test was properly administered indicating an alcohol concentration at or over the legal limit or if you refused the breath or blood test.

It is important to remember that this is not a criminal proceeding. It is a civil proceeding against your license or privilege to drive. There is no presumption of innocence, no proof beyond a reasonable doubt and no right to an attorney if you cannot afford to hire one.

Because the administrative action by DOL is on a fast track, it will probably be determined before a related DUI charge is resolved or even charged in court. You can't wait for the DUI charge to be resolved. You MUST request the hearing within 30 days or you will lose your license. It is however a good idea to consult with an attorney before requesting the hearing.

Blood Tests Distinguished from Breath Tests

You don't get to have a blood test INSTEAD OF a breath test. But you can request one in addition to the breath test. If the officer releases you after the breath test, you can obtain your own blood test. The officer doesn't have to provide you with one.

However, the officer can't interfere with your right to additional tests. So if you are actually held in jail, the officer must arrange to provide you with a blood test if you ask for one. Interference with a person's right to obtain additional tests can result in the DUI charge being dismissed.

ALWAYS ASK TO TALK TO A CRIMINAL DEFENSE ATTORNEY BEFORE TAKING THE BREATH TESTS ASK FOR PRIVACY TO TALK TO YOUR ATTORNEY.

Contact a Lynnwood, Washington, criminal defense lawyer John F. Segelbaum today.