Breath Test Refusal

Penalties you may face

A refusal to take a breath test after being arrested for DUI or Physical Control will cause you to be punished more severely than if you took the test if you are convicted. It also will cause your license to be revoked by the Department of Licensing for at least a year. But do not fret; our Washington DUI attorneys at Callahan Law, P.S., Inc. know how to defend you in court and with the DOL-so it is important that you request a DOL hearing within 20 days of the date you were arrested, even if the police got a warrant to take your blood forcibly to test it for impairing substances.

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What are some other consequences?

Linda M. Callahan

Jail and EHM

By law, a court has to impose harsher penalties, including additional jail time, for people convicted of DUI or Physical Control who refused to provide breath samples. Our Washington DUI attorneys work hard to find ways to beat the case, if possible, or to convince the prosecutor to strike the refusal allegation or reduce the charge to something less serious. The maximum time the judge can give you is 364 days in jail.

The minimum jail for breath test refusal is:

  • First conviction (no priors within 7 years) – 2 days minimum in jail
  • Second conviction (within 7 years) – 45 days minimum in jail, plus 90 days on electronic home detention (house arrest)
  • Third or fourth conviction (within 7 years) – 120 days minimum in jail, plus 150 days electronic home detention

What Is Considered a “Prior?”

A “prior offense” is a conviction or a deferred prosecution for a variety of offenses that the legislature has deemed to be similar to a DUI or Physical Control. The most commonly occurring “prior offenses” are Reckless Driving, Negligent Driving in the First Degree, and Reckless Endangerment if reduced from an original charge of DUI or physical control within 7 years (whether under state law or an equivalent law). A deferred prosecution that was or was not successfully completed is also considered a “prior” and so is a DUI or physical control that was on a pretrial diversion or stipulated continuance or “continued without finding” within 7 years. A prior conviction for felony DUI, felony Physical Control, Vehicular Homicide, or Vehicular Assault is also a prior offense if it was committed while under the influence of intoxicating liquor or any drug, even if it was amended to a lesser means of committing the crime. A complete list of “prior offenses” can be found at RCW 46.61.5055(14).

“Tough DUI Laws Require Tough DUI Lawyers”

Linda M. Callahan

Other consequences of Refusing the Breath Test

In addition to jail and financial obligations, a DUI or Physical Control conviction with a refusal entails a longer license revocation:

Prosecutors often attempt to argue in trial that a person refuses a breath test when they know they are guilty.

But there are many reasons why a person might refuse: they may distrust the machine, the officer, or the government in general. They may mistakenly believe that if they refuse the breath test they have the option of a blood test instead, however, even if the officer obtains a warrant for a blood test, the refusal of the breath test will still stand. Or, they may not have actually refused, but due to asthma, COPD, a panic attack or other physical condition, or due to a mechanical defect in the machine, were unable to blow enough air into the breath test machine.

plan of action

know your rights

Washington State has some of the toughest DUI laws in our nation. These laws carry increasingly severe penalties for those who drink and drive. Washington lowered the BAC limit from .10 to 0.08 in January of 1999. Drivers with a blood-alcohol concentration (BAC) at .08 or above can now be convicted of driving under the influence of alcohol. In addition, because public sentiment is so very negative toward drunk drivers, prosecutors will often pursue a DUI conviction even when the driver’s test result is well under .08! This is possible because they can obtain a conviction if they can show the person drove while “affected by” alcohol, and/or marijuana or any drug, including prescription or over-the-counter medications.

We Challenge The Following Evidence On Every Case.


Probable Cause

Before you were asked to step out of your vehicle, the officer has been gathering evidence to support the arrest.


Field Sobriety Tests

As Ms. Callahan likes to call them “Bad Science”, FST’s are virtually impossible to pass, especially if the officer is the one grading you.


Breath Test - BAC

Factory trained, Linda M. Callahan understands the science behind breath testing most attorneys don’t.


Blood Test

With extensive training at Axion Labs in Chicago, Linda M. Callahan has the relevant experience to challenge Blood test evidence.

Can I Refuse a Breathalyzer Test?

Learn more about defense strategies and evidence

We know DUI Law better than most firms.  That’s why we are trusted by Thomson Reuters to Author the DUI Practice Manual for Washington every year since 2006.  We literally write The Book on DUI.

Let Us Be Your Legal Advocate

Contact one of our Experienced DUI Attorneys today and get the advice you need now.  Learn how to save your license and stay out of jail.

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Disclaimer: The legal information presented on this site should not be construed to be formal legal advice, nor the formation of a lawyer or attorney client relationship. Any results set forth herein are based upon the facts of that particular case and do not represent a promise or guarantee.  This web site is not intended to solicit clients for matters outside of the state of Washington.

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