Bring Out The Needle

By Brett A. Purtzer; July 2000

Those attorneys who do not practice criminal defense in general or emphasize DUIs in particular must be aware of one significant change in the implied consent statute as set forth within RCW 46.20.308. 

     Previously, there was no automatic right for a law enforcement individual to request a blood test in lieu of a breath sample.  Although exceptions exist when a person is incapable [due to physical injury, physical incapacity, or physical limitation] of providing a breath sample are required to provide a blood draw, one of the additional exceptions to request a blood test in lieu of or in addition to a breath test is “where the officer has reasonable grounds to believe that the person is under the influence of a drug . . .”.  Under such circumstances, a person may be requested to submit to a blood test instead of or in addition to, a breath test.  If a person refuses to submit to the blood test, that refusal has the same effect as if the person refused a breath test. 

     The primary issue that arises with respect to this type of a request surrounds what constitutes “reasonable grounds” to suggest that person is under the influence of a drug.  Although there are no surefire field tests to suggest that a person is under the influence of a drug as opposed to alcohol, when your client calls you at 2:00 a.m. and says that she has already given a breath sample, but the officer wants her to submit to a blood test, make certain that you question your client as to why it is that the officer wants to draw blood.  Additionally, if you are able to, question the officer to see what his or her basis is for requesting your client to submit to a blood test. 

     The problem with refusing the blood test where reasonable grounds exist is that a refusal will trigger the mandatory one-year driver’s license suspension in a criminal case if there is a conviction, as well as the Department of Licensing hearing that is mandatory in cases where a refusal is noted. Although there are ways of combating the issue as to whether “reasonable grounds” existed, it is much easier to allow your client to submit to a blood test as opposed to running the risk of losing his or her license for two years.  As such, when you receive a phone call or someone is seeking advice as to whether they are “required” to submit to a blood test, one must be cautious as to the advice provided.  It is never a question if there is a physical incapacity or injury that precludes a person from giving consent.  However, at those times when a person is able to give consent and the officer is seeking consent, the attorney must be careful not to mislead the client.  This may subject that client to the jeopardy of losing their license for a significant period of time, as well as potentially jeopardizing a winnable criminal case.                                                               

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