If you have been arrested for a DUI, you have a VERY limited time to act. We offer a free consultation to discuss your options. If you are interested, contact us today.
Facing a DUI charge in Washington has never been easy. The laws in this state are among the harshest in the nation. But recent highly publicized tragedies have enhanced the stress and public scrutiny of a DUI allegation. It is now even more critical to have a highly trained advocate by your side, as the laws increase in complexity and intensity.
Administrative and Criminal Sanctions
After an arrest for DUI, it's important to know that you now have TWO battles before you, in the following circumstances:
1) if your breath or blood alcohol level was .08 or greater (or .02 or greater if you are under the age of 21), and/or
2) if your blood draw analysis showed an active level of THC (the psychoactive substance in marijuana) at 5 nanograms or higher (or any measurable amount if you are under the age of 21), and/or
3) you refused a breath test when you were requested to provide one after a lawful arrest.
If one of those circumstances apply, there will be a civil (administrative) action against you for either refusing a breath test, and/or for testing over the "per se" legal limit(s). There is also almost certainly going to be a criminal action filed against you for violating State and/or City codes which prohibit driving under the influence of intoxicants.
Please Note: Under a new law which takes effect on January 1, 2019, you have only SEVEN days to request a hearing with the Department of Licensing before you lose the opportunity to challenge the civil suspension, so you must act quickly!
In the administrative hearing, the Department of Licensing will pursue a civil suspension or revocation of your driver's license, which is triggered by a notice from the arresting agency that you submitted to a breath or blood test which was over the legal limit(s). Or, it would be triggered by a notice from the arresting agency that you have refused to submit to a lawfully requested breath test.
If at attorney is 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. This is quite rare and happens in very limited circumstances.
OTHER IMPORTANT INFORMATION
- Ignition Interlock is mandatory for 1 year upon a DUI conviction. This increases to 5 yrs if there has been a previous IID order, and 10 yrs if there have been two previous IID orders.
- After a suspension/revocation due to conviction, proof of alcohol treatment will be needed to reinstate a Washington driver's license.
- Enhancement of 60 days IID can be added if children under 16 were in the vehicle at the time of arrest, along with additional mandatory jail.
- A DUI charge cannot be vacated under the current law. Lesser offenses can later be vacated in some circumstances.
- Canadian travel will be restricted because of any criminal conviction, even DUI's reduced to lesser charges.
- “Within 7 years” means arrest (and ultimately a charge) for prior DUI (even if it is ultimately reduced to a lesser charge), when the events of arrest happened within 7 yrs of the current arrest.
- To reinstate license after suspension (i.e. loss of license under 1 year): proof of high risk insurance, a/k/a "SR-22" will be required for total of 3 yrs, along with a requirement that you pay a reinstatement fee.
- To reinstate license after revocation (i.e. loss of license for one year or more): proof of SR-22 (3 yr period) is required, along with payment of a fee, and required driver ability tests.
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.
In 2012, the Legislature amended the definition of ‘drugs' for driving-related offenses to include "any chemical inhaled or ingested for its intoxicating or hallucinatory effects."
“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.
The “Demise” of the .08 Standard - DUI charges even below .08
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: Within two hours after driving, an alcohol concentration of .08 or higher as shown by analysis of the person's breath or blood, or; Within two hours after driving, a THC concentration of .08 or higher as shown by analysis of the person's blood, or; While the person is "under the influence of, or affected by" intoxicating liquor or any drug; or 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 and/or drugs? 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 or the blood showed less than 5 nanograms of THC.
We have had the difficult task of representing a number of defendants with tests as low as .06, .05 and even .04, or with THC levels below the legal "per se" standard. 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 registering over the "legal limit."
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.The DUI laws remain complex, convoluted and confusing. And they change constantly. 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.
House Bill 3317, passed into law that took effect 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 a specific number of prior DUI 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. In 2017, this law was amended to make the "4th" offense in 10 years a felony. When first enacted, this was a Class C felony. As of 2016, this law was enacted to make it a Class B felony.
A defendant charged with a DUI who has a prior DUI-related Vehicular Assault or Vehicular Homicide (no matter how old the offense), can see the DUI charged as a Class B felony.
The Felony DUI or Physical Control is statutorily described as a “crime against persons” and also a “felony traffic offense,” and it 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.”
The Felony DUI/Felony Physical Control offense specifically cannot be vacated from a person's criminal history, unlike some other Class B felonies.
Statutory Definitions :