If you operate a vehicle in the District, DC law states that you have given consent to submit to a breathalyzer test if you get stopped by the Metropolitan Police Department (“MPD”) for suspected DUI or DWI. However, MPD is not going to force you to take a breathalyzer test. You can refuse to submit to testing. At Scrofano Law PC, while the facts of every case are different, we believe that if you have had even a drop of alcohol, refusing to take a breathalyzer test will usually better protect you and your rights.
To convict someone of DUI, the government must prove that the person (1) operated a motor vehicle in DC, and (2) was intoxicated. Without breathalyzer results, it is more difficult for the government to prove that you were intoxicated. DC criminal laws allow the government to use your refusal to take the breath test as evidence that you were intoxicated. What this means is that the government will provide a judge with proof that you refused to take the test and argue that you must have refused because you were feeling guilty about drinking and driving.
For first time DC DUI or DWI offenders who refuse to take a breathalyzer test, the government has to provide more evidence than just your breathalyzer refusal to prove that you were intoxicated. For example, the government will have an MPD officer testify about the way you were acting when you got pulled over and why they thought you were intoxicated based on your actions—like odor of alcohol on breath, performance on the SFST’s, and other observations. For people charged with a second DUI or DWI offense in DC who refuse to take a breathalyzer test, a different legal standard applies.
DC DUI and DWI laws state that if a second time DC DUI offender refuses to take a breathalyzer test, a jury is allowed to presume a person was intoxicated based only on the refusal. As a second time DUI or DWI offender, if you refuse to take a breathalyzer there is a rebuttable presumption that you were intoxicated. A rebuttable presumption means that unless you can prove that you were not intoxicated, a jury can find you guilty of DUI based solely on the fact that you refused to take the breathalyzer test.
You might be thinking “I only had a few drinks. Wouldn’t it have been easier to prove I wasn’t drunk if I submitted to the breathalyzer test?” Not exactly. MPD has a history of problems with their breathalyzer program. This no-win situation is exactly why the rebuttable presumption for second time DUI offenders is a highly contentious area of the law.
In our legal system, you are innocent until proven guilty—at least that is how the system is supposed to work. For second time DUI offenders who refuse to take the breathalyzer test, you are essentially guilty until you prove yourself innocent. The DC Court of Appeals has not decided whether the rebuttable presumption is constitutional, but many DC Superior Court judges have ruled that it is unconstitutional and have refused to apply it.