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The “Demise” of the .08 Standard
Washington DUI laws are some of the toughest in the nation. DUI laws are consistently becoming tougher, and you should know that Washington has, for all practical purposes, abandoned the concept of a "legal limit." But wait, you say. I don't remember anything about a "zero tolerance" law being passed. I see "Drive Hammered, Get Nailed" on billboards across town and I have been responsible and respectful of the legal limit -- what gives?
It may come as a shock, but the legal limit has become a mere formality. A Washington driver can be found guilty of DUI or "physical control" (vehicle not in motion) in two ways:
1) Within two hours after driving, an alcohol concentration of .08 or higher as shown by analysis of the person's breath or blood or;
2) While the person is under the influence of or affected by intoxicating liquor or any drug; while the person is under the combined influence of or affected by intoxicating liquor and any drug.
What does that mean? Who decides if you are "affected by" alcohol? Usually it's the officer who stopped you -- he or she will file a ticket with the prosecutor and declare that you were "affected" by the consumption of alcohol when you drove, even if your breath test was under .08. I have had the difficult task of representing a number of defendants with tests as low as .06, .05 and even .04. Each of these clients believed he or she was responsible and cautious in consuming alcohol and each client was charged with DUI.
The reason for these charges appears to be tactical. A prosecuting attorney can offer a reduced charge of reckless driving or negligent driving and many clients will "cut their losses" and accept the deal. The risk and expense of facing a trial with even the possibility of a DUI conviction is horrifying. So many defendants plea to a lesser charge, and now they have criminal histories -- without ever blowing more than .08.
What is a responsible citizen to do when faced with a breath test after what seems to be a responsible glass of wine or two during dinner? Many of my clients ask, "If the legal limit isn't going to save me, why should I take the test?" Well, the Legislature made this decision a bit easier with a 2004 amendment to the DUI laws, which punishes a "refusal" DUI with much higher consequences than a "breath test" DUI. For instance, a first offense DUI with a breath test carries between 90 and 365 days of license revocation -- but a conviction for a first offense "refusal" DUI now carries two years of license revocation, with restricted work licenses available after a waiting period of 90 days and the installation of an ignition interlock device.
The DUI laws remain complex, convoluted and confusing. In an age when our personal freedoms are being curtailed in the interests of public safety, it's important to know what it takes to avoid criminal charges.
Administrative and Criminal Sanctions
After an arrest for DUI, it’s important to know that unless your breath or blood alcohol level was under .08 (or under .02 if you are under the age of 21), you now have TWO battles before you. There will be a civil (administrative) action against you for either refusing a breath/blood test; and a criminal action against you for violating State and/or City codes which prohibit driving under the influence of intoxicants.
In the administrative hearing, the Department of Licensing will pursue a civil suspension or revocation of your driver’s license
If you are able to successfully negotiate the criminal case, it won’t impact the administrative matter. And if your administrative matter is found in your favor, it doesn’t mean the criminal case goes away. There is only one limited circumstance in which the criminal matter can influence the administrative matter – it involves the application of the principle of “collateral estoppel” where a ruling from the criminal court can influence the ruling on the administrative case against you. If you have questions about whether this situation applies to your case, talk to your attorney.
COURT — DUI Sentencing Grid (RCW 46.61.5055 as amended through July 1, 2007) |
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“Prior Offense” includes the following: (as defined in RCW 46.61.5055) |
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Original Convictions for the following: |
Amended Convictions for the following: If the person was originally charged with DUI or Phys. Cont. or an equivalent local ordinance, or Veh. Homicide (RCW 46.61.520) or Veh. Assault (RCW 46.61.522) |
Deferred Prosecution Granted for the following: |
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“Within seven years” or “within 10 years” means that the arrest for a prior offense(s) occurred within seven years, or within 10 years, of the arrest for the current offense. |
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Alcohol Concentration Less Than .15 or No Test Result |
No Prior Offenses Within Past Seven Years |
One Prior Offense Within Past |
Two or Three Prior Offenses Within Past Seven Years |
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Jail Time*** |
1-365 Days (24 consecutive hours non-suspendable) |
30-365 Days (30 days non-suspendable) |
90-365 Days (90 days non-suspendable) |
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Electronic Home Monitoring* |
In Lieu of Mandatory Minimum Jail Time, Not Less Than 15 Days |
60 Days |
120 Days |
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Fine |
$350-$5,000 ($866 total minimum fine w/statutory assessments****) |
$500-$5,000 ($1,121 total minimum fine w/statutory assessments****) |
$1,000-$5,000 ($1,971 total minimum fine w/statutory assessment****) |
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Driver’s License |
90 Day Suspension |
Two Year Revocation |
Three Year Revocation |
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Ignition Interlock Device |
DOL Shall Require ** |
DOL Shall Require ** |
DOL Shall Require ** |
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Alcohol/Drug Ed. Or Treatment |
As Determined by the Court |
As Determined by the Court |
As Determined by the Court |
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Alcohol Concentration at Least .15 or Greater or Test Refusal |
No Prior Offenses Within Past Seven Years |
One Prior Offense Within Past Seven Years |
Two or Three Prior Offenses Within Past Seven Years |
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Jail Time*** |
2-365 Days (2 consecutive mandatory) |
45-365 Days (45 days mandatory) |
120-365 Days (120 days mandatory) |
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Electronic Home Monitoring* |
In Lieu of Mandatory Minimum Jail Time, Not Less Than 30 Days |
90 Days |
150 Days |
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Fine |
$500-$5,000 ($1,121 total minimum fine w/statutory assessments****) |
$750-$5,000 ($1,546 total minimum fine w/statutory assessments****) |
$1,500-$5,000 ($2,821total minimum fine w/statutory assessments****) |
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Driver’s License |
1 Year Revocation (2 years if BAC refused; RCW 46.61.5055(7)©) |
900 Days Revocation (3 years if BAC refused; RCW 46.61.5055(7)©) |
4 Year Revocation |
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Ignition Interlock Device |
DOL Shall Require ** |
DOL Shall Require ** |
DOL Shall Require ** |
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Alcohol/Drug Ed. Or Treatment |
As Determined by the Court |
As Determined by the Court |
As Determined by the Court |
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- Electronic Home Monitoring (EHM): For first time offenders, the court may impose electronic home monitoring in lieu of the mandatory minimum jail time.
ADMINISTRATIVE SANCTIONS – RCW 46.20.3101 |
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REFUSED TEST |
First Refusal Within 7 Years And No Prior Administrative Action Within Past 7 Years |
Second or Subsequent Refusal Within Past 7 Years OR First Refusal And At Least One Prior Administrative Action Within Past 7 Years |
Adult |
One Year License Revocation |
Two Year License Revocation |
Minor |
One Year License Revocation |
Two Year License Revocation Or Until Age Twenty-One Whichever Is Longer |
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ALCOHOL CONCENTRATION TEST RESULT |
First Administrative Action |
Second or Subsequent Administrative Action |
Adults With 0.08 or Greater |
90 Day License Suspension |
Two Year License Revocation |
Minors With 0.02 or Greater |
90 Day License Suspension |
One Year License Revocation Or Until Age Twenty-One Whichever Is Longer |
Note: An individual convicted of DUI or physical control will have his/her driving privilege placed in probationary status for five years from the date he/she is eligible to reinstate his/her driver’s license (see RCW 46.61.5055 and 46.20.355). An individual granted a deferred prosecution under RCW 10.05.060 will have his/her driving privilege placed on probationary status for five years from the date of the incident, which was the basis for the deferred prosecution (see RCW 46.20.355 and 10.05.060).
Impact upon Commercial Driver’s Licenses
For a driver with a CDL, a DUI arrest can be particularly devastating. Under Washington laws, you can now face suspension of your driving privilege and the revocation of your CDL even if you were arrested for driving under the influence in your non-commercial vehicle. While driving a CDL, you can face a DUI even if your breath test is at a level of .04.
Be sure to consult an attorney immediately if you receive notice of any suspension or pending suspension of a CDL.
Medication and DUI’s
Many citizens may be aware that you can be charged with a DUI when you have medication in your system, rather than illegal drugs or alcohol. Over-the counter medications, such as cough syrup, can contain alcohol or other mood-altering drugs.
But many people may not be aware that even with a lawful prescription for a drug in your system, you can still be charged and ultimately convicted of a DUI. This is true even if you are consuming the drug in accordance with the prescription and the drug manufacturer’s guidelines. If the prosecution can make a case that it affected your ability to drive, they can pursue criminal charges. It is particularly important to discuss your medical history and prescriptions with your attorney if your case involves prescription medication, as the defenses are unique and somewhat intricate.
“But I Wasn’t Driving!”
So you have had too much to drink. You had originally planned to drive home, but you now realize that it’s not a good idea. Proceed with caution! If you walk out to your car, sit in the driver’s seat, turn on the heater, and lay back to “sleep it off” – you can be charged with an offense that is every bit as serious as a DUI. If you are in “physical control” of a motor vehicle while under the influence of alcohol or drugs, the consequences are identical to a charge for a “standard” DUI. The safest plan is to avoid your vehicle altogether, and find another way home.
Now, there is a provision in Washington law known as the “safely off the roadway” defense, which allows a defendant to potentially avoid a conviction because, prior to being pursued by law enforcement, they had moved their vehicle off the publicly traveled roadway. This defense is complicated, and there are many exceptions and restrictions to the law. The burden is on the defendant to show that they moved the vehicle of their own accord, that it was fully off the publicly traveled portion of the roadway, that the defendant no longer planned to drive, etc. The policy behind the defense is understandable: the Legislature wanted citizens to feel safe pulling over to park off the road if they realize that they should not be driving. If you believe this defense should apply to your case, be sure to talk to your attorney about this part of the Washington DUI laws.
Felony DUI :
House Bill 3317, passed into law that becomes effective on July 1, 2007, makes Driving Under the Influence or Physical Control of a Motor Vehicle Under the Influence a felony offense in specific circumstances. A charge of DUI/Physical Control becomes a Class C felony if the offender has 4 or more prior offenses in the previous ten years. A “prior offense” is defined as a conviction for DUI/Physical Control, a successfully completed deferred prosecution, or a conviction for Negligent Driving 1st Degree, Reckless Driving, or Reckless Endangerment, where the charge was initially filed as DUI/Physical Control. A DUI/Physical Control charge also becomes a felony for any offender who has a prior conviction for Vehicular Assault or Vehicular Homicide at any time in their past.
The Felony DUI is described as a “crime against persons” and also a “felony traffic offense.” It is ranked with a seriousness level of V, a category which includes charges such as Child Molestation 3rd Degree, Extortion in the First Degree, Rape in the Third Degree, and Possession of a Stolen Firearm. Ironically, a Vehicular Assault (a case involving DUI or Reckless Driving or Disregard for the Safety of Others that results in substantial bodily injury to a person) is a Level IV offense, with a lower presumptive sentencing range. A non-felony DUI or Physical Control is classified as a “serious traffic offense.”
The presumptive sentencing range for a Level V felony is 22-29 months in custody, unless there is good cause for an exceptional sentence based on a number of circumstances. This offense carries the possibility of up to one-third “good time” reduced from the total sentence. The same provisions for license suspension and IID requirements apply as in the misdemeanor statutes.
A Felony DUI or Felony Physical Control is not an offense eligible for the special provisions of the “First Time Offender Waiver,” the “Special Drug Offender Sentencing Alternative,” or the “Work Ethic Camp.”
While the Felony DUI/Felony Physical Control offense is a Class C felony, it cannot be vacated from a person’s criminal history after five years, as other (non-sex offense) Class C felonies. Instead, there is a ten year period before a Felony DUI/Felony Physical Control can be vacated from an individual’s history.