WPIC 92.13 Breath Test Refusal—Definition

Use this instruction if the prosecution chooses to submit to the jury the RCW 46.61.5055 mandatory sentence enhancement of breath test refusal, WPIC 92.03 (Driving or Being in Physical Control While Under the Influence—Sentencing—Jury Interrogatory).

The instruction was revised in 2014 in several respects. The prior instruction referred to a “positive unwillingness to do the request or to comply with the request.” The italicized phrase was removed from the instruction for better grammatical usage, and was not intended to signify a change in the law.

RCW 46.20.308 (Implied Consent) sets forth the procedure for law enforcement when administering a breath or blood test.

See the Comment to WPIC 92.03 (Special Verdict Form—Driving or Being in Physical Control While Under the Influence—Sentencing) for comment on the removal of blood test refusal language from the instructions for the 2014 update.

For illustrative cases discussing what constitutes a “refusal,” see Medcalf v. State, Dep't of Licensing, 133 Wn.2d 290, 301–02, 944 P.2d 1014 (1997); Dep't of Licensing v. Lax, 125 Wn.2d 818, 822, 888 P.2d 1190 (1995); Ball v. Dep't of Licensing, 113 Wn.App. 193, 53 P.3d 58 (2002); and Rockwell v. State, Dep't of Licensing, 94 Wn.App. 531, 972 P.2d 1276 (1999).

Boating Under the Influence (BUI). For a violation of RCW 79A.60.040, a refusal to submit to a test of breath or blood is not admissible into evidence at a criminal trial. RCW 79A.06.700. However, under several circumstances a search warrant may be issued for a blood test for BUI. RCW 79A.60.040(4)(b).