DUI Refusal in DC


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 small amount of alcohol, refusing to take a breathalyzer test will usually better protect you and your rights in the District of Columbia. Having said that, its important to understand that the prosecution will always use a refusal against the defendant in court. Regardless of the reason for the refusal, there can be negative consequences for doing so. Its just that often times the consequences for taking the breathalyzer test can end up being worse in many cases.

What are the elements of a DC DUI?

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. It may be that a perfectly good explanation exists for refusing the test. However, prosecutors will often times use that against the defendant.

First Offense DUI

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 the suspect was acting when pulled over and why they thought the person was intoxicated based on their observations of the person’s actions—like odor of alcohol on breath, performance on the SFST’s, and other observations. In addition, prosecutors may not offer diversion in some cases where the defendant refuses to take the breathalyzer test. Whether to offer favorable plea agreements or to offer a defendant diversion falls within a prosecutor’s discretion. That means they can set policies about which defendants they will make such offers to. The Office of the Attorney General for the District of Columbia has such a policy. However, often times a good criminal defense lawyer may be able to get them to deviate from that policy.

In 2012, the District of Columbia City Council revised their DUI and DWI law. The newer law stiffened penalties for repeat offenders and folks with high chemical scores. It created a range of reasons to require judges to impose mandatory minimums for certain facts in their DUI cases. In addition, it created a so-called “rebuttable presumption” for repeat offenders who refuse to take a chemical test. Accordingly, for people charged with a second DUI or DWI offense in DC who refuse to take a breathalyzer test, a different legal standard applies.

Second Offense DUI

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 the defendant refused to take a breathalyzer there is a rebuttable presumption that the person was 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. There has been some case law to limit this proposition to what’s called a “permissive inference,” but the law is still on the books.

Even in situations where the suspect only had a few drinks, there can be issues with the breathalyzer testing. On the other hand, in some cases, it may make sense to take a breathalyzer to show only limited or no alcohol consumption. However, the Metropolitan Police Department has a history of problems with their breathalyzer program. This dynamic creates a no-win situation and is exactly why the rebuttable presumption for second time DUI offenders is a highly contentious area of the law.

In our legal system, the defendant is 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, the law says that the defendant is essentially guilty until they prove their innocence—at least on the element of impairment. This provision has led to numerous challenges in the Superior Court and the Court of Appeals.

Hiring a DC DUI Lawyer

Since the penalties for second offense DC DUI’s are greater, it is imperative that you hire a DC DWI lawyer who understands these issues and has experience challenging the the rebuttable presumption for second time offender refusals. At Scrofano Law PC, we have successfully persuaded judges not to apply the rebuttable presumption for second time DC DUI offenders who refuse to submit to a breathalyzer test.

If you or someone you know has been arrested for a second DC DWI, contact Scrofano Law PC immediately for a full consultation. It could mean the difference between being presumptively guilty and maintaining your presumption of innocence.