Refusal typically produces a one-year (or longer for priors) license revocation through the Department of Licensing, independent of the criminal case. Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant. That is what separates Washington refusing a breathalyzer from a generic national summary. Read Wash. Rev. Code § 46.20.308 before the background sections below. Washington's implied-consent warning and testing scheme (RCW 46.20.308) requires breath or blood testing after a lawful DUI arrest; refusal has DOL license consequences.
License suspension and administrative hearings
Refusal typically produces a one-year (or longer for priors) license revocation through the Department of Licensing, independent of the criminal case.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Criminal consequences of refusal
Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. Washington statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Breath/blood results and refusal evidence are central in DUI prosecutions; Washington's implied-consent warnings are frequently litigated.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search Washington opinions for “refusal” and “implied consent.”
A concrete Washington scenario
Here is one way the Washington pieces fit together. Change any fact and the statute may point somewhere else.
A driver is arrested for DUI in Washington and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Wash. Rev. Code § 46.20.308: Refusal typically produces a one-year (or longer for priors) license revocation through the Department of Licensing, independent of the criminal case.
- Separate that track from the criminal case: Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
- Ask whether the refusal can be argued to the jury: Breath/blood results and refusal evidence are central in DUI prosecutions; Washington's implied-consent warnings are frequently litigated.
- If the request is for blood rather than breath, apply the warrant rule: Breath is ordinary; blood is used for drugs, hospital cases, or when breath cannot be obtained, usually under warrant when compelled.
In Washington the refusal question is answered first by Wash. Rev. Code § 46.20.308, then by the administrative deadline and the criminal case.
Breath tests versus blood tests
Breath is ordinary; blood is used for drugs, hospital cases, or when breath cannot be obtained, usually under warrant when compelled.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research Washington opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Washington
The State of Washington, Respondent, v. Douglas Lee Moore, Appellant
The State of Washington, Respondent, v. Douglas Lee Moore, Appellant, 79 Wash. 2d 51 (1971)
…llant's conviction, we uphold the constitutionality of the "Implied Consent Law" to the extent its constitutionality is presented in this appeal. The fact pattern of the case can be summarized as follows: Appellant, after driving his automobile to Tacoma to attend a meeting, discovered the meeting had been canceled. He then spent some time in a Tacoma tavern, where he allegedly…
The State of Washington, Respondent, v. Douglas Lee Moore, Appellant is worth reading on Washington implied consent / breathalyzer refusal because the court put the point in its own words: "Implied Consent Law' to the extent its constitutionality is presented in this appeal. The fact pattern of the case can be summarized as follows: Appellant, after driving his automobile to Tacoma to attend a meeting, discovered the meeting had been canceled." Use that passage as the starting point, then read the facts that precede it.
The State of Washington, Petitioner, v. Dennis Wetherell, Respondent; The State of Washington, Petitioner, v. Dennis
…either occasion did the officer involved give the statutory implied consent 1 or Miranda warnings before obtaining the blood sample or administering the breathalyzer test. In the case of defendant Wetherell, the officer asked the attending physician for a blood sample. Wetherell overheard the conversation and asked what the blood sample was for, to which the officer replied tha…
Washington opinions such as The State of Washington, Petitioner, v. Dennis Wetherell, Respondent; The State of Washington, Petitioner, v. Dennis are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Miranda warnings before obtaining the blood sample or administering the breathalyzer test. In the case of defendant Wetherell, the officer asked the attending physician for a blood sample." That is the language to brief; the rest of the decision supplies the procedural posture.
Maurice Fritts, Appellant, v. the Department of Motor Vehicles, Office of Driver Services, Respondent
…test. Though he was twice informed of his rights under the implied consent law and the consequences of refusal, once in the patrol car at the scene of the arrest and again in front of the breathalyzer machine at the sheriff’s office, appellant refused to submit to the test. Upon receipt of Officer Hammock’s sworn statement complying with RCW 46.20.308, the Department of Motor…
Washington opinions such as Maurice Fritts, Appellant, v. the Department of Motor Vehicles, Office of Driver Services, Respondent are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Though he was twice informed of his rights under the implied consent law and the consequences of refusal, once in the patrol car at the scene of the arrest and again in front of the breathalyzer machine at the sheriff’s office, appellant refused to submit to the test." That is the language to brief; the rest of the decision supplies the procedural posture.
Dale Douglas Greenwood, Respondent, v. the Department of Motor Vehicles, Appellant
…n, J. Does a person arrested pursuant to RCW 46.20.308, the implied consent statute, have the right to subject his decision to submit to a chemical test of his breath, as directed by the arresting officer, to the condition that he first be permitted to have a blood test administered by a qualified person of his choosing? That is the sole question presented by this appeal. The t…
Dale Douglas Greenwood, Respondent, v. the Department of Motor Vehicles, Appellant is worth reading on Washington implied consent / breathalyzer refusal because the court put the point in its own words: "J. Does a person arrested pursuant to RCW 46.20." Use that passage as the starting point, then read the facts that precede it.
State v. Avery
State v. Avery, 13 P.3d 226 (2000)
…illegally drew his blood without first advising him of the "implied consent" warnings set forth in RCW 46.20.308. We find that the officers lacked reasonable grounds to believe Avery had been driving under the influence of alcohol and, therefore, the warnings were not necessary. Thus, we affirm. FACTS[1] In June 1997, at approximately 6 a.m., Avery's automobile drifted toward t…
On implied consent / breathalyzer refusal, State v. Avery speaks to the Washington dispute in this passage: "RCW 46.20.308. We find that the officers lacked reasonable grounds to believe Avery had been driving under the influence of alcohol and, therefore, the warnings were not necessary. Thus, we affirm. FACTS[1] In June 1997, at approximately 6 a.m." The surrounding opinion shows how the court applied that language to the record.
The State of Washington, Petitioner, v. Larry Ray Krieg, Respondent
The State of Washington, Petitioner, v. Larry Ray Krieg, Respondent, 7 Wash. App. 20 (1972)
…tention that the application of the warnings would make the implied consent statute conflict with the search warrant statute is not persuasive. The search warrant statute, RCW 10.79.015, provides, in part: Any such magistrate, when satisfied that there is reasonable cause, may also, upon like complaint made on oath, issue search warrant in the following cases, to wit: (3) To se…
Practitioners open The State of Washington, Petitioner, v. Larry Ray Krieg, Respondent when Washington implied consent / breathalyzer refusal turns on the distinction in this sentence: "tention that the application of the warnings would make the implied consent statute conflict with the search warrant statute is not persuasive. The search warrant statute, RCW 10.79.015, provides, in part: Any such magistrate, when satisfied that there is reasonable cause, may al" Do not lift it out of the facts the court was deciding.
Margo E. Waid, Appellant, v. the Department of Licensing, Respondent
Margo E. Waid, Appellant, v. the Department of Licensing, Respondent, 43 Wash. App. 32 (1986)
…n Officer B, with Officer A looking on, advised Waid of her implied consent rights. Waid refused to take the Breathalyzer test. Subsequently her driving privileges were revoked by the Department of Licensing for 6 months. At a trial de novo in King County Superior Court, the judge sustained the revocation of driving privileges. Waid appeals. Officer's Arrest RCW 10.31.100(3)(d)…
Margo E. Waid, Appellant, v. the Department of Licensing, Respondent is worth reading on Washington implied consent / breathalyzer refusal because the court put the point in its own words: "Officer B, with Officer A looking on, advised Waid of her implied consent rights. Waid refused to take the Breathalyzer test. Subsequently her driving privileges were revoked by the Department of Licensing for 6 months." Use that passage as the starting point, then read the facts that precede it.
The Department of Motor Vehicles, Respondent, v. Paul D. Riba, Appellant
The Department of Motor Vehicles, Respondent, v. Paul D. Riba, Appellant, 10 Wash. App. 857 (1974)
…arresting officer read to defendant from printed forms, the implied consent warnings contemplated by RCW 46.20.308, and the constitutional right warnings contemplated by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966). Defendant signed the implied consent warning form but did not sign the form notifying him of his constitutional rights…
Washington opinions such as The Department of Motor Vehicles, Respondent, v. Paul D. Riba, Appellant are cited where implied consent / breathalyzer refusal is disputed. The court stated: "RCW 46.20.308, and the constitutional right warnings contemplated by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966)." That is the language to brief; the rest of the decision supplies the procedural posture.
Key takeaways
- Primary authority: Wash. Rev. Code § 46.20.308.
- Administrative hit: Refusal typically produces a one-year (or longer for priors) license revocation through the Department of Licensing, independent of the criminal case.
- Criminal exposure: Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
- Evidence: Breath/blood results and refusal evidence are central in DUI prosecutions; Washington's implied-consent warnings are frequently litigated.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Implied consent in Washington
Washington's implied-consent warning and testing scheme (RCW 46.20.308) requires breath or blood testing after a lawful DUI arrest; refusal has DOL license consequences.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in Washington appellate opinions.
Frequently asked questions
What happens if I refuse a breathalyzer in Washington?
Refusal typically produces a one-year (or longer for priors) license revocation through the Department of Licensing, independent of the criminal case. Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Is refusal a separate crime in Washington?
Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Will the prosecutor tell the jury I refused?
Breath/blood results and refusal evidence are central in DUI prosecutions; Washington's implied-consent warnings are frequently litigated.
Do I need a warrant for a blood draw?
Breath is ordinary; blood is used for drugs, hospital cases, or when breath cannot be obtained, usually under warrant when compelled. See also Birchfield and McNeely linked above.