Court upholds prosecutors’ ability to use a breath test refusal as evidence of guilt in DUI trials

Shortly before Christmas, the Washington Supreme Court decided State v. Baird (consolidated with State v. Adams), which upheld the ability of prosecutors to argue that a person is guilty of DUI because they refused to take the voluntary breath alcohol test (BAC test). This was a big case in the world of DUI law. Had the court ruled for the defense, it would have completely altered the way DUIs are investigated and prosecuted in the State of Washington. The issue was important enough that the King County Prosecutor’s Office sought a writ of review from Superior Court while the cases were still pending in District Court, and the Superior Court sent the case directly to the Washington Supreme Court (skipping the Court of Appeals).

The defense argument relied on two cases, the US Supreme Court case Missouri v. McNeely and the Division I case State v. Gauthier. In McNeely, the court ruled that with advancements in technology, the police must get a warrant (or consent) in order to take a blood sample (not breath sample) in a DUI investigation. The old argument was that it takes too long to get a warrant, and that this, therefore, is an “exigent circumstance” allowing the search without a warrant. McNeely concluded smart phones and 4G internet negates this old argument. In Gauthier, the defendant refused to provide the police with a  voluntary DNA swab, and the prosecutors used that refusal to convict the defendant of rape at trial. On appeal, the court held that since the police did not have a warrant for the DNA swab, the defendant had a constitutional right to refuse to consent to the police’s search (providing a DNA swab for testing is a search). And because the defendant was exercising a constitutional right by refusing the DNA swab, it is not fair for prosecutors to argue that he is guilty because he exercised his rights.

The defense in Baird argued that drivers arrested for DUI had a constitutional right to refuse the breath test, just like a person has a constitutional right to refuse to let the police enter and search their home without a search warrant. Just like Guathier, it would not be fair to use the refusal to take the breath test as evidence the driver is guilty of DUI.

This argument makes logical sense, and three of the nine Supreme Court justices agreed. However, if the court ruled for the defense, it would make investigating DUIs more costly and difficult. If the defense prevailed, police could still request breath tests, but if a driver refused, the jury would not be informed of this fact and the prosecutor would have to rely on other evidence to prove impairment (driving, performance on the field sobriety tests, ect.). Police can always request a search warrant to take a blood sample to prove blood alcohol level. While advancements in technology make requesting a warrant for a blood sample a more cost effective route, it is not as easy and quick as a breath test. So it is not surprising the court’s majority wanted to find some way to uphold implied consent law’s ability to coerce drivers into taking the breath test.

If there is an exception to the warrant requirement, such as an exigent circumstance or search incident to arrest, then the person does not have a constitutional right to refuse the search and therefore, the refusal to consent to the search can be used against the person. So what warrant exception could the court use to justify a search (i.e. a breath test) in a DUI investigation?

The State tried the same failed logic rejected by the McNeely decision; that dissipation of alcohol in the blood makes the delay in obtaining a warrant impracticable in DUI cases. As in McNeely, the court rejected this and ruled that the dissipation of alcohol in the blood was not an exigent circumstance to justify a breath test without a warrant.

Needing another exigent circumstance to hang their hat on, the court relied on the recent Supreme Court decision Birchfield v. North Dakota, which upheld North Dakota’s and Minnesota’s increased penalties for breath test refusal. Birchfield also held that a breath test is a valid search incident to arrest under the 4th amendment of the US Constitution. A search incident to arrest is a valid warrant exception and as noted above, if the State can establish a valid exception to the warrant requirement, a person has no right to refuse the search and refusal to consent to the search can be used to establish guilt. The court also ruled that in exchange for driving in Washington, drivers agree and have notice that their refusal to take a BAC test after being arrested for DUI will be used against them at trial.

The dissent in Baird agreed that a breath test was a search, that the dissipation of alcohol in the blood is not an exigent circumstance in breath tests cases, that Gauthier is still good law, and that prosecutors cannot use a refusal to consent to a search if the person has a constitutional right to refuse. However, the dissent disagreed that Birchfield’s holding that a breath test is a search incident to arrest is binding on Washington because Birchfield was analyzing the US Constitution where as Washington’s Constitution’s offers greater privacy protections.

The end result is that breath tests are considered a search requiring a warrant, but that the search incident to arrest exception to the warrant requirement applies requiring breath tests following all DUI arrests. So if a driver refuses to submit a breath test, the prosecutor can continue to tell the jury that only a guilty person would refuse a breath test.