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Like driving cases, breath/blood test refusals present the attorney with several challenges. Furthermore, unlike driving cases, where over 90% of the time an attorney would advise a driver to take the breath test; boating cases are not as black and white. Unlike driving cases, where a refusal will result in greater administrative and criminal sanctions, a refusal following an arrest for BUI could benefit one in the criminal court, yet have adverse consequences in the civil forum.
1. Refusals and the Criminal Court.
Breath test refusals in driving cases can have a devastating impact on those accused of DUI. It increases the mandatory jail time, regardless of criminal history. It lengthens the mandatory license suspension imposed by both the court and the Department of Licensing. However, in the BUI context, not only does a refusal have no effect on mandatory penalties, it potentially has no relevance and therefore inadmissible.
The statute specifically governing the admissibility of a breath test refusal states:
The refusal of a person to submit to a test of the alcohol or drug concentration in the person's blood or breath under RCW 46.20.308 is admissible into evidence at a subsequent criminal trial.
Remember, only those who operate a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Therefore, it would appear that citizens of this State have never impliedly consented to a test of our breath or blood when arrested for Boating Under the Influence.
Furthermore, refusals obtained following implied consent warnings are inherently more probative than those obtained following an arrest for BUI. In the driving context, a person is told: (1) that if they don’t take this test, they will lose their license for at least one year, and; (2) that their refusal to submit to a test will be used against them in a court of law. Consequently, it is easier for the prosecutor to argue “evidence of a guilty conscience” in a DUI case. After all, this person was willing to give up their drivers’ license in order for a jury not to hear the results of that test. The right to refuse to submit to a breath test is a matter of legislative grace, and the Legislature may condition that right by providing that a refusal may be used as evidence in a criminal proceeding for a DUI charge. However, the Legislature has never “graced” us with the right to refuse a test following a BUI arrest. Further, we have never impliedly consented to a test of our breath or blood when operating a vessel. Instead, we have a Constitutional Right to be free from unreasonable search and seizures.
While the prosecutor will read, at nauseum, the implied consent warnings read to a DUI defendant before they refused the test, often times, there are no warnings read to a BUI suspect. Often times the inquiry is as informal as “so, you want to take a breath test?” Recently however, the Washington State Patrol has drafted some quasi-implied consent warnings which create even more issues for those seeking an aggressive defense. The most recent BUI warnings read as follows:
You are under arrest for RCW 79A.60.040: Operation of a vessel while under the influence of intoxicating liquor and/or drugs. You are now being asked to submit to a test of your breath or blood. The breath test consists of two separate samples of your breath, taken independently, to determine alcohol concentration.
First, a boater is not even told of the right to refuse. Secondly, it would appear that should they choose to refuse, it will have no effect on their case; but they are not so informed. A refusal will not increase any license suspension or criminal penalty. Finally, apparently the Washington State Patrol does not believe that boaters have a right to an independent test taken by the professional of their choosing. While we applaud the efforts of the State Patrol to make BUI breath tests seem more official, these warnings create a litany of due process issues. In conclusion, unlike the DUI context, where a prosecutor could reasonably demonstrate a nexus between a driver’s refusal and a guilty conscience, it seems impossible in the BUI context. Essentially, should a boater refuse a breath or blood test, it will not increase any criminal sanction potentially imposed by the Court. How then can a prosecutor establish any relevance to a vessel operator’s choice to not submit to such testing? Consequently, it would appear that any refusal in the marine context lacks any probative value and its admission would clearly by unfairly prejudicial to your client.
While refusals seem to have little probative value before the criminal court, they can have a devastating impact administratively before a Coast Guard hearing officer.
2. Refusals and Coast Guard Hearings.
Refusals have two different meanings in the eyes of the Coast Guard. If arrested by law enforcement, a refusal to submit to chemical testing is automatically admissible and is presumed to be evidence of intoxication. (If however, the refusal is obtained by a marine employee it is only automatically admissible.) Since this latter scenario is only likely to occur in the commercial shipping arena, the practicing defense attorney is unlikely to encounter this situation when dealing with recreational boaters.
Successful arguments, however, can still be made at the administrative level. For example, while the Coast Guard is told to consider this evidence of intoxication, when all the other evidence suggests otherwise, it would be improper to make such an inference. Further, while this statute may be based upon the reasonable belief that no boater would refuse if they weren’t drunk, what becomes of that causal connection when they are greatly mis-informed by the warnings currently in use by law enforcement? A boater is not told that per Coast Guard regulation a refusal will constitute evidence of intoxication, nor are they even told that it will be used against them in any way.
Consequently, while at first glance, it would appear that refusals will most certainly result in the imposition of a civil fine before the Coast Guard, the arguments against that are only limited by the practicing attorney’s imagination and the rules of ethics. |
