Implied consent is an important aspect of DUI defense. The Washington implied consent statute, RCW 46.20.308, requires officers to inform a driver suspected of DUI of certain consequences of refusing or submitting to a breath test. When recreational marijuana use was decriminalized in Washington, the legislature set a legal limit for THC levels in the blood while driving. It also added a warning to the implied consent statute, stating the consequences of a breath test that indicated the driver’s THC concentration was above the legal limit. The available breath tests, however, could not measure THC. Although the statute has since been amended again, there were cases that arose under the language requiring the THC warning.
This blog previously discussed the case of State v. Murray, wherein the Court of Appeals found that the defendant’s breath test results were not admissible because the officer did not provide the THC warning.
The Supreme Court of Washington recently reviewed that case, consolidated with another. The trooper involved in each case used an identical form in providing the implied consent warning. The warning did not include statutory language regarding THC, but it advised the defendant that he or she was subject to a driver’s license suspension, revocation, or denial if the test indicated he or she was under the influence of alcohol. The form stated the defendant had the right to refuse the test, but if he or she did so, his or her driver’s license, permit, or privilege to drive would be revoked or denied for at least a year, and that refusal could be used in a criminal trial. It further stated that the driver’s license, permit, or privilege to drive could be suspended, revoked, or denied for at least 90 days if the defendant was at least 21 years old, the test indicated a blood alcohol level of .08 or more, and the defendant was in violation of RCW 46.61.502, Driving Under the Influence, or RCW 46.1.504, Physical Control of a Vehicle under the Influence.