iI was in an accident where I was hit broadside at 45mph. I was taken to the hospital for my injuries, medical staff or ambulance crew smelled alcohol, i had had 1 drink earlier. I was asked to submit to a bloodtest after read my rights including the right to have an attorney present during these samples. i stated i had no attorney on record but would like one, this was taken as a refusal. I possess a Class A CDL, but this accident was not in a commercial vehicle, the legal limit because of this license is .04. I knew i was close to this and because of the seriousness of the accident refused the test w/out counsil present. I was not cited, Can charges be brought up against me and can i be convicted of a dui after refusing the blood test under these circumstanses
When interviewing a DUI defense lawyer ask the following questions:
What percentage of your annual caseload is relegated to defending DUI?
How many DUI jury trials did you have in the past 12 months?
Can you provide a list of DUI training seminars or conferences attended in the past 2 to 5 years?
What percentage of your clients enter a plea of guilty to the crime charged?
Have you or any members of your firm written articles or books related to defending DUIs?
How many lawyers are in the firm, and are they all DUI defense attorneys? If so, will they collaborate with their colleagues about your DUI case?
How many years have you defended DUI cases?
I'll just add on to the other counsels' advice. As you weren't in a commercial vehicle,the breath test result would have had to be .08 or over, not .04. But regardless, they marked you as a refusal. If you ask for an attorney prior to taking any test, they should allow you to call one--either a private attorney or a public defender. Here's where your issue arises: did the officer allow you to contact private counsel (or attempt to), or make an attempt to reach a PD? If so, it would properly be marked as a refusal. If not, if you said, "I want to consult with an attorney first" and no accomodations were made, you did not refuse and you should contest the suspension through the administrative hearing with DOL (NOTE: generally, you only have 20 days to do so from the date of the DUI). The revocation is 2 years, so if you have the $200 to invest, it's worth your time to try to fight it. While charges CAN be brought against someone even after a refusal, the prosecutor would have to show that your driving was appreciably affected by alcohol. Here, according to your fact pattern, you were hit broadside at 45 mph. If you clearly were not at fault for the accident and not ticketed for the same (i.e., if the other driver was ticketed), this would give the prosecutor trouble. Make sure you get a copy of the accident report (which would be filed separately from any criminal report)
In Washington State, a refusal can still result in a DUI charge and conviction. You do have a right to speak with a lawyer however, and it sounds like your rights may have been violated by not allowing you to at least attempt to speak with a lawyer. Under certain circumstances, police can obtain the results of a blood sample without your consent, but it sounds like maybe that did not happen here. I'm afraid that a big concern for you at this point is the likelihood that you may face a DOL license suspension for refusal to blow. The officer would need to send the paperwork to the DOL and the DOL would need to issue a letter advising you of their intent to suspend your license. A DOL: suspension would likely be a serious problem for you, given your CDL status.
These potential consequences can be fought by a good attorney. If the accident happened fairly recently, it's probably a good idea to get in touch with an attorney right away. An attorney experienced in handling DUI charges and DOL hearings will know how to best defend you. Although you have not yet been charged, having the ability to conduct an investigation, and speak with potential witnesses at the hospital while they still have a memory of the incident, could help you to establish evidence in your favor on the question of refusal. The police may say that you refused, but if you have evidence to the contrary, it would likely help your legal position. I have seen the police wait for several months before filing charges on blood test cases. At that point, it becomes very difficult to obtain witness testimony - particularly from hospital staff who frequently deal with similar cases as memories tend to fade with time and overlap.
If charges are filed, it might be possible to get the prosecutor to reduce the charge to a charge with lesser consequences for your CDL status.
Although I don't practice in Washington, you could be charged and convicted of DUI under these circumstances. The odor of alcohol combined with any observations by police, paramedics or hospital personnel regarding other signs of impairment could be the basis of a prosecution. The fact that you were requested to give a blood sample and read your rights, indicates their suspicion of your impaiment. Contact a Criminal/DUI lawyer before discussing this with anyone.
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