D.C. Code Ann. 50-1902 is the implied consent statute that holds anyone who operates a motor vehicle in the district is determined to have given consent to submission to a breathalyzer or blood analysis testing. However, a person can withdraw or negate the implied consent by refusing to take the test. But such a refusal will cost you: A mandatory 12-month revocation of your license. If you have no license, you will be denied issuance of one for a period of one year.
While your refusal can be used against you in criminal DUI proceedings, it is not in and of itself proof that you were driving under the influence. That’s what makes it so tough for prosecutors, who then must prove their case absent any biological, scientific proof of your intoxication. (Police can forcibly extract a blood sample from you after arrest, but only after first obtaining a warrant.)
Still, many states are cracking down on refusals, making it tougher to use this as a defense.
A recent state supreme court decision out of Vermont raised interesting questions with regard to breathalyzer refusals relative to enhanced penalties for repeat DUI offenders.
In Vermont v. Wainwright, the state high court reversed the findings of two lower courts, ruling that someone with previous DUI convictions who refuses a breathalyzer can still face enhanced DUI penalties under the law.
In Vermont, the law says that for each successive DUI conviction, a person will face harsher penalties. This would be quite straightforward, but for the issue of breathalyzer refusals.
One of the defendants was convicted of DUI in 2008. He was subsequently arrested in 2012 for a second DUI after refusing to submit to a blood test when stopped by an officer. Prosecutors in the case argued that he should receive the tougher, second-offense penalty (a maximum two years behind bars and a $1,500 fine). However, the judge in that case found there was not enough evidence to support the second DUI conviction. (After all, there was no tangible evidence that his blood-alcohol level exceeded the state’s 0.08 percent maximum.) As such, his penalties would only include those for refusal to submit to the test.
In the second case, the defendant had three prior DUI convictions when he refused to submit to alcohol testing during a stop. Prosecutors charged him with a fourth DUI. But again, the judge found a lack of evidence to support that charge.
Prosecutors in both cases still wanted the defendants to face the harsher penalties. In Vermont, those with prior convictions can not refuse a breathalyzer without facing criminal sanctions. While in most Vermont DUI cases, refusal of an alcohol test may be admissible as evidence in the criminal case, it is not a crime in and of itself – unless the person has a previous DUI conviction.
This is where it got confusing. The question was: Could that older DUI conviction be used to formulate the basis for a charge of criminal refusal as well as lay the foundation for harsher penalties?
The lower court said no.
The state supreme court, however, reversed the lower court rulings in both cases, reasoning that the legislative intent was to allow the same prior DUI conviction to be used as a basis for both an element of the criminal refusal case, as well as an enhancement to the penalty for refusal. The court determined that lawmakers had wanted for there to be increased punishments for multiple violations of the DUI law, regardless of how it was violated. That could include having a blood-alcohol level of 0.08 percent or higher, refusal to submit to a breathalyzer or some other means.
However, the court’s decision was not unanimous. The dissenting justice argued that any lack of clarity in the law should be decided in favor of the defendants.
The bottom line for D.C. DUI offenders is that DUI law is not always crystal clear in its interpretation. If you aren’t sure about your options following a DUI arrest, contact an experienced DUI lawyer to explain your rights.
If you are facing DUI charges in D.C., contact the Law Office of Daniel A. Gross, PLLC at 202-596-5716.