Quote:
Originally Posted by Jeff Higgins
This was here in Washington. Here is the text of the Washington "implied consent" law:
RCW 46.20.308
Implied consent — Test refusal — Procedures.
(1) Any person who operates 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 for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in his or her breath 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. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood.
(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol or THC in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. The officer shall inform the person of his or her right to refuse the breath test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that:...
This "reasonable grounds to believe..." provision is what keeps Washington LEO from pulling over just anyone and randomly conducting sobriety tests. Our New Year's Eve checkpoints and other such un-Constitutional misbehavior from our police have consistently been quashed by this provision. In this case, having been stopped for tabs rather than driving behavior, and having passed the field sobriety tests would indicate the cop had no "reasonable grounds to believe...". The case should have been tossed before it ever got to court.
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It seems pretty clear that this whole case should be tossed if the info in your OP is accurate.
Your friend's refusal
did not happen during an arrest as required in the statute posted so there should be no penalty for his declining a
request. He was stopped for tags, not arrested. While being
detained, he passed a field sobriety test and was not arrested. The male officer stated he was "good to go," clearly indicating that your friend was being detained, not under arrest. He was asked to submit to a breathalyzer which he was
not required to do as he was not under arrest. Since he was not under arrest at the time of the request, he was not in violation of the statute posted above. The officer should have obtained a warrant as there was no probable cause that a crime had or would be committed and, in fact, all behavior indicated he was not impaired. The statute clearly states that a test cannot be refused if a person is under arrest and the officer has probable cause to suspect intoxication. In this situation, neither of those criteria were met. Your friend refused a request to do something he was not required by law to do, and was arrested. Once arrested, he complied with the statute provisions.
This is the tack I would have thought his attorney would take, and maybe she is.