BAC Test Administration in DC DUI Arrests

The breath test program was shut down for months because of record keeping problems and inaccuracies several years ago. During that time, the police departments who operated in DC turned to urine tests more than they had in the past. Now that the breath test program is running again, the primary chemical test used by all of the relevant police agencies such as the Park Police, the Capitol Police, Metropolitan Police Department, FBI, and others after a DC DUI arrest is the breath test.

Types of Testing

When someone is arrested for DUI in DC, breath testing is almost always done by Capitol Police or Metropolitan Police Department. Their primary chemical test is the breath test.

Sometimes the officer suspects that a driver is impaired by something other than alcohol because there is no smell of alcohol and the person does not demonstrate the alcohol-related clues on the field sobriety test. The police may request a urine sample, because the urine test picks up everything such as marijuana, cocaine, K2, and other substances. The urine sample is collected at the police station or sometimes in the hospital.

When someone is in the hospital in a DUI situation involving an accident with injuries, the police collect a blood sample. The person is in the hospital where blood is being drawn by a medical staff and the police can get a sample of that.

Breathalyzer Administration

Many people have a misconception thinking that breathalyzers are done on the scene during a DC DUI arrest. The police rarely do a roadside breath test. In some other jurisdictions, they call it a portable breath test, an RBT, or PBT. They are not used in DC at the scene because those tests are not admissible in court.

The mini-machines are not properly calibrated and certified such that they could be used as actual evidence against someone. Over the years, police officers stopped using the portable or roadside breath test as a form of BAC administration in a DC DUI stop. Instead, they have the actual bigger machines at the police station.

Implied Consent

Under the implied consent law, driving is a privilege. When someone applies for a driver’s license, they give consent to the administration of field sobriety tests and chemical tests during a DC DUI arrest if they are under suspicion of driving impaired. When someone drives publicly in a jurisdiction, the individual implies that they consent to give a chemical sample when requested to do so by law enforcement investigating a possible DUI situation.

If an individual refuses, they are properly advised of the implied consent law and told that they have the right to refuse. However, if they refuse, the DC DMV can revoke their license or privilege to drive for at least one year based on that refusal. If the person still refuses, the police fill out the Notice of Proposed Revocation document and check the refusal box on the form. The form is submitted to the DC DMV.

If the individual does not request the hearing, the suspension or revocation of their privilege to drive or driver’s license is for at least one year rather than six months. The revocation of driving is at least one year when the person requests a hearing and the officer can prove that the implied consent was properly advised to the person and they knowingly refused to participate in any testing.

Application of Consent

Implied consent applies to all three types of alcohol drug tests in DC DUI arrests. The law says that the breath, blood, or urine test is determined as requested by the police, not by the person under suspicion of driving impaired. There are limited exceptions having to do with medical reason or religious basis, for example, for not giving a blood sample.

However, if the police officer requests that an individual gives a urine sample and the individual declines and indicates that they want to give a breath sample, they can be marked as a refusal. It is important to note that a person who is charged with a DUI does not get to choose what they want to do.

Arguing Against Consent

The way a refusal under the implied consent law works in a DC DUI case is that there is an inference that the person is trying to not give evidence, which shows they have consciousness of guilt. They refuse to give a chemical sample by breath, blood, or urine upon request by the law enforcement. They do not want to prove their own impairment by giving a chemical test sample. That is an inference; it is not a presumption.

The Office of the Attorney General had a new law passed in 2012 that says when someone has a prior DUI conviction and refuses to provide a chemical sample in a new case, it is a rebuttable presumption that the person was impaired and that is why they did not give a breath sample.


The courts have so far said that it is an improper burden shifting. They use the fact that a person refused to do a breath, urine, or blood test against them in court. A defense attorney can demonstrate that the individual had valid reasons to decide against giving a breath, blood, or urine sample as requested by the police that had nothing to do with trying to hide evidence of impairment. Sometimes the officers have zero patience when the person is not sure what to do and has follow-up questions. The officer can deem that as a refusal. With the implementation of body worn cameras, that impatience on the part of the officer is demonstrated and can be used in court.

An individual may have concerns because the average person driving on the street has not been through this before. They have not been through a DUI arrest and have no legal training. They are in a situation where a police officer reads them legal language about consequences refusing a chemical test. They may want to ask questions or request to speak to a lawyer before making their decision. In most DUI cases, people are not given an opportunity to make a phone call to a lawyer even if they request it. When they are not allowed to speak to their lawyer, they may refuse to provide a chemical sample and that is the same as a refusal.

Refusing is not always an attempt to cover up evidence against oneself. There are many instances where an attorney can make a successful argument against the inference that a refusal is an attempt to hide incriminating evidence.