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When DUI Refusal Cases Go to Trial and Win.

 Whatcom County DUI refusal cases are notoriously difficult to defend in court. Especially when the allegation is that the person was driving under the influence and then after being arrested, that they refused to take a breath test.

If a defendant gets convicted of a refusal DUI, they will face enhanced penalties including up to a two-year license revocation, over $2,000 in fines and fees, 60-months on probation, and between 2 days and a year in jail.

In a typical DUI case, the prosecutor relies on the tests results from a breathalyzer or a chemical blood test. For people over 21, the legal limit is 0.08, and if the jury finds that the test was correctly given and the results were correctly produced, the defendant can be legally found guilty. But the refusal-DUI has no breath or blood test, so prosecutors have to heavily rely on the arresting officer’s observations, field sobriety tests, admissions made by the defendant, and they can use the ultimate weapon in refusal cases, the “consciousness of guilt” argument.

In every DUI refusal case, the prosecution puts forth the argument that any innocent person standing in the defendant’s shoes would have taken a breath test, and because the defendant here refused to do so, he or she knew they were guilty of DUI and wanted to try to conceal that fact by refusing to take the breath test. Sounds spurious, but that exact “what was he or she hiding” argument happens every day in DUI trials, and almost 100% of the trial judges in Washington State allow it.

The argument seems powerful, but it overlooks the extreme unfairness of the situation that drivers who get arrested for DUI find themselves in. No driver knows exactly what their breath test result will be, and in our experience, police officers coach defendants on how to breath into breathalyzers so that the results will be as high as possible. Drivers are also made aware that they have a right under state law to decline breath testing, and they even get afforded the right to speak to a live lawyer to discuss whether or not to take the test. Ultimately there may be numerous reasons that someone declines to take a breath test, the least of which is that they might be guilty of a DUI.

I recently defended a young Bellingham, WA man on a refusal DUI charge in the Whatcom District Court. My client was stopped by a Washington State Patrol Trooper in downtown Bellingham just for driving 40 miles an hour in a 30 mph zone. The trooper was a brash and forceful person who happened to have a dash camera in his car – something that believe it or not, is rare these days. In his police reports, the trooper alleged that my client was “obviously impaired,” although the client refused to perform sobriety tests at the roadside, and did not provide a sample of his breath for the trooper’s hand-held breath tester. The video showed my client driving normally, and you could even hear him speaking normally without any repetition or slurring. At the end of the arrest, the client spoke to an on-call public defender and then decided to refuse to take the breath test. Despite all of this, he was cited for a refusal DUI.

The client had a lot riding on this, because he had been previously convicted of a DUI-related offense in the past seven years. This meant that he was facing at least 30-days in jail, five years on probation, five years with an ignition interlock, and several thousands of dollars in fines if he got convicted.

My client started out with another local attorney, who read the police reports and immediately advised him to just plead guilty and accept a plea bargain for 30 days in jail, plus fines and other penalties. The client was less than thrilled with that recommendation and promptly fired his lawyer.

When the client came to me, I told him that he shouldn’t have to plead to anything, and that we’d take the case to a jury. And that’s exactly what we decided to do.

On the eve of trial, the prosecution offered a different plea bargain for no jail, but our client stood his ground on principle.

At trial, the prosecutor used the consciousness of guilt argument. “If he only had one drink, they why not just take the breath test?” she told the jury. “What did he have to lose by taking the test,” she argued.

Our defense consisted of highlighting the lack of evidence needed to prove that the client was impaired that night beyond a reasonable doubt. In fact, very little evidence of the client’s impairment existed. We also called the public defender to testify about her observations when she spoke to the client that night on the phone.

A jury of six people in Whatcom County District Court only took 20 minutes to find our client not guilty. The jurors followed the law, and determined that the prosecutor simply had insufficient proof of driving while intoxicated. The Trooper’s observations and “speeding” were simply not sufficient.

If you are facing DUI/DWI charge, it is very important that you receive the best legal defense possible. The law firm of Lustick, Kaiman & Madrone has over 50 years of combined service to the community in defending DUI/DWI cases. Our legal team believes that all citizens accused of any crime are presumed innocent until proven guilty in a court of law. We extend high quality and professional legal defense services to anyone accused of a wide array of criminal offenses, including all felonies, DUI/DWI, domestic violence charges, and all misdemeanors. Our normal coverage territories include Whatcom County, San Juan County, and Skagit County.

We offer a free one-hour consultation for criminal offenses and one of our lawyers will appear for free at your first court hearing. Please call (360) 685-4221 to schedule a meeting with one of our defense team members.  Or reach us through our web info wiki here:

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