Defense attorneys have argued for years that a breath or blood test constitutes a search and that without a warrant, citizens should have the right to refuse the search without consequence. Washington courts have finally agreed with this argument, and the Court of Appeals recently issued an opinion on the issue in the case of State v. Gauthier.
The court held that a blood test should be considered a search and that, unless presented with a warrant, citizens have the right to refuse such a search. The court also held that the prosecution cannot use the right to refuse against a defendant at trial. The ruling changes the landscape of criminal litigation and not only protects defendants from unreasonable searches and seizures, but also from prejudicial evidence at trial.
The ruling is not limited to blood samples and can apply to many difference scenarios, including refusals to provide DNA swabs, refusals to provide a breath sample, or refusals to submit to any sort of intrusive search without a warrant.
The logic is similar to that regarding a person’s right to remain silent without consequence. Simply put, exercising a constitutional right is not admissible as evidence of guilt.
The case is already making an impact on the common offense of driving under the influence. The ruling prevents the state from using evidence of a DUI refusal as proof of guilt or to infer guilt.
Cristine Beckwith. Cristine is a criminal defense attorney who works from her Seattle and Tacoma offices. She has owned Beckwith Law, PLLC since 2007. Please visit http://www.beckwithlawgroup.com to learn more.
markpattersonlaw
Juries are polluted by television. Without a blood test they are going to presume the guy declined meaning guilt, or the police botched the case, meaning innocence.
Read this last months ABA journal about crime labs. It is Kafkaesque.
Cristine Beckwith
Hello Elliot, State v. Gauthier is a criminal case that applies to criminal litigation. It does not comment on the current department licensing consequences for enhanced license suspensions for refusals.
Jennifer Richards
However, I think it is important to note that this will not affect consequences of refusal from the Department of Licensing.
Elliot
My understanding (as a non-lawyer who took my drivers ed and drivers license test in Pennsylvania) was that since driving was a privilege and not a right that refusing a breathalyzer or other requested tests would result in suspension of your license for not complying. Does this ruling apply only to non-driving related requests for these tests or would it extend to refusing a test when stopped while driving?
Essentially would it change the first portion of this statement or only the second half relating to using the refusal against you in court? “Refusing to Take the Test – Once you are arrested, the officer must tell you that you have the right to refuse the test, but if you do, you will lose your license for one year and evidence of your refusal can be used against you in court” from http://dui.drivinglaws.org/resources/dui-refusal-blood-breath-urine-test/washington.htm
Thanks!