Anatomy of a DUI: A DUI Arrest & Breath Test ProceduresJonathan Rands
Formal Arrest When a law enforcement officer has determined he has probable cause to arrest you for the crime of Driving Under the Influence a typical series of events ensues. Understand that each officer’s customs (good or bad; legal or not) vary and this is a general overview of what to expect. First, an officer will likely tell you to turn around and place your hands behind your back and the officer will apply handcuffs to you. If this command...
When a law enforcement officer has determined he has probable cause to arrest you for the crime of Driving Under the Influence a typical series of events ensues. Understand that each officer’s customs (good or bad; legal or not) vary and this is a general overview of what to expect.
First, an officer will likely tell you to turn around and place your hands behind your back and the officer will apply handcuffs to you. If this command is given, and no matter how surreal the situation seems, it is in your interest to comply. The handcuffs may be uncomfortable and it is likely that the officer will check the fit and ask you about the comfort level. Often as the officer is doing this he will tell you that you are under arrest for DUI and recite the famous Miranda Warning of rights: “You have the right to remain silent…You have the right to an attorney…”
Some of the best advice any criminal defense attorney can offer to you is to heed these warnings and exercise these rights. The officer is trained to observe and write down, word-for-word, each comment that comes out of your mouth. This is not the time to explain to the officer anything about your case – no amount of talking is going to remedy your problem at this point. Be as cordial and cooperative as you can, but do not offer any details of your evening, any explanations, and if asked politely explain that you are exercising your right to silence. Remember: Silence is Golden, but it is also imperative that you indicate to the officer that you would like to be given the chance to speak with your attorney, or if you do not have one, you can ask that he place you in touch with an attorney. Even if one is said to be unavailable, or unreachable, remain silent.
Next you will be placed in the back of a police cruiser while the officer deals with your vehicle. In Washington State the officer is required to impound the vehicle under Hailey’s Law. For more information see Jonathan Rands’ explanation of Hailey’s Law here.
The officer may need to wait for up to 30 minutes for the tow driver to arrive, or this task may be delegated to another officer. Again, this is not the time to ‘talk your way out,’ to make any explanations, and it is certainly not the time to tell the officer about his shortcomings or your views on his job performance. Simply remain silent – the only questions appropriate to respond to would be about how to contact the owner of the vehicle (if it is not you) or any necessary identifying information (birth date, address, phone number, etc.).
Arriving At The Jail
After your vehicle is secured and prepared for impound, then you will transported to a facility where the officer will continue with DUI protocols including a significant amount of paperwork, ask you to submit to a test of your breath or blood, and often book you into jail until a hearing or until an amount of preliminary bail is set.
Most often you will enter the jail facility through a double-locking set of doors. This can be frightening for most people as it is very reminiscent of things you have only seen on television. There may be significant amounts of waiting involved and you may be scared, irritated, or otherwise very uncomfortable. Remember, the officer and other law enforcement personnel are following protocols from this point forward – remaining silent about the evening is your best course of action.
Beginning the Breath Alcohol Content (BAC) Testing Procedure
15-Minute Observation Period
Breath tests that are sought to be admissible as evidence in a criminal case in Washington State are performed via BAC DataMaster and DataMaster Verifier machines. The first step in this process is for the officer to check your mouth for any foreign objects to begin the “15-minute observation period.” The officer must ensure that there are no foreign objects – food, jewelry, etc. – in your mouth for at least fifteen minutes prior to the breath test. The officer is also required to maintain constant observation of you in order to ensure that you do not vomit, belch, eat, drink, or otherwise get anything in your mouth that may taint the test he is going to administer.
During this ‘observation period’ the officer begins going through his DUI Arrest Packet – the vast majority of law enforcement agencies use forms identical or very similar to that of the Washington State Patrol’s DUI Arrest Packet. Included in the paperwork are several forms the officer will likely read to you and ask you to sign. The officer will again advise you of your rights and then he will ask for a waiver of those rights – do not sign this portion – being assertive but not unruly, you demand an attorney and you will not answer any questions about the incident. If, or when asked questions, feel free to point to the right written on the paper telling you of this right. DO NOT SIGN ANYTHING. You have no obligation to sign documents and chances are if you start signing documents you may sign away your right to silence. You may ask questions and if you don’t understand something this is the only time to speak up and say this. In certain instances such a statement is a defense to a refusal.
Implied Consent Warning For Breath
Next the Officer will read or have you read for yourself the Implied Consent Warnings for Breath or Blood. After going over this the officer should ask you if you have any confusion – if you do it is imperative that you state what the confusion is and seek to discuss this process with an attorney so you must demand to speak with one. Many officer’s will NOT read you these warnings until AFTER you speak with an attorney which is problematic because you did not have questions about these warnings until that conversation was done and some officer’s will refuse to let you speak to one again. If this happens it is of the utmost importance that the “confusion” or “questions” you have about the Implied Consent Warnings be documented. In fact, unless you consider yourself an expert of DUI law, licensing consequences and the evidentiary implication of submitting or refusing a breath test you should be confused about the legal jargon that is contained on the form. Tell the officer you are confused if you don’t completely understand anything on the form and demand the opportunity to speak with an attorney in order to answer your questions. The officer should offer no explanations to you as he is not a licensed attorney lawfully entitled to dispense legal advice.
It is important to remember that you have the right to refuse the test, BUT…your refusal to take the test can be used against you (if over age 21), and if you refuse the officer may apply for a search warrant for you blood via a judge. With a search warrant the officer would take you to a medical facility, most likely a hospital, and have your blood drawn against your will. In this instance the prosecutor now has two pieces of evidence, a refusal to show "consciousness of your guilt," and a blood result that may show evidence of guilt. The use of a search warrant to secure blood alcohol concentration evidence is NOT new, but it is becoming more and more popular when there is a refusal. Citizens are presumed to know the law so it is important to realize these additional consequences of a breath test refusal. WA is a breath test state, unless there are special circumstances, blood testing in lieu of breath testing is not a right. This is not to say that you cannot request an additional test in the form of a blood test; YOU SHOULD MAKE SUCH A REQUEST, but the local hospital appears to be in cahoots with the jail, and will not do blood draws at the request of citizens Bellingham DUI arrested drivers. They will, however, happily draw your blood when the officer presents you and say HE wants them to draw your blood. This is another topic altogether. The best advice at this point is "remain silent" and "do give a breath sample."
After reading the Implied Consent Warnings to you the officer will proceed through the DUI packet and seek your answers to 30 pre-printed questions. These are strategically designed to gather information valuable to the prosecution that has already begun. REMAIN SILENT! SHUT UP! ZIP IT! whatever you need to think to remember this extremely important advice. Do not answer these questions. Exercise your right to remain silent. If asked directly, politely tell the officer you have no interest in answering any further questions about the incident.
The Breath or Blood Test
After the 15-minute observation period has passed the officer will ask you to submit to the breath test. In Washington State, a “valid” test actually requires two separate samples of your breath. The DataMaster machine will prompt the officer for information and at the appropriate times the officer will place a disposable plastic mouthpiece on the end of a tube from the machine and tell you to blow and blow and blow until he tells you to stop. The machine is programmed to identify when a ‘sufficient’ amount of air has been provided into the machine and it will make a beep. The machine will accept as little as 5 seconds of air, but the officers are trained to have you blow for as long as physically possible because "the longer you blow the higher you go." After two sufficient blows and the machine runs several other processes a breath test ticket with the results of the “blow” will be produced by the machine. It is a carbon copy ticket and you should be provided with a copy.
In the event that an officer has reason to believe that you are under the influence of a substance other than alcohol (i.e. drugs) he can actually seek a blood draw under the Implied Consent Statute in Washington State instead of a breath test. As stated above – you can refuse and the officer can apply for a search warrant from a judge. In the event, the officer seeks a blood draw you will be taken to a medical facility to have blood drawn. The blood will eventually be sent to the Washington State Patrol’s Crime Lab to be analyzed. The results of the blood analysis take anywhere from 1 week to a year depending on a myriad of factors.