An excerpt from the book, “The DUI Handbook for the Accused.” (Published by Outskirts Press in 2007. Author: David N. Jolly)
For information on your Washington State DUI please contact our Snohomish County DUI attorneys, King County DUI attorneys, Island County DUI attorneys, or Skagit County DUI attorneys at 425-493-1115 or check out our website at http://www.washdui.com/
Driving Under the Influence (DUI)
RCW 46.61.502
Unfortunately we cannot avoid looking at the statute for the explanation of a DUI. This is the case because a DUI is the creation of the Legislature who decided what the definition of a DUI was and what the blood alcohol content limit would be. As a result, it is the statute in each state that defines what a DUI is and it is this definition that the prosecutor must prove beyond a reasonable doubt.
In Washington State a person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within the state:
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or
(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.
Alcohol concentration means (1) grams of alcohol per 210 liters of a person’s
breath or (2) the percent by weight of alcohol in a person’s blood. RCW 46.04.015
Looking at the statute it is clear that it is not only the excessive consumption of alcohol that can place the driver in fear of being arrested for a DUI, but also the use of drugs, legal or illegal, that can put in criminal jeopardy a driver of a motor vehicle. Further, lawful use of a prescription drug is not a defense to a charge of DUI.
In Washington State, like all States, the DUI laws have changed over the years and have adapted to social and political pressure. In 1999, Washington State bent under political pressure from the Federal government and lowered the “per se” blood/breath alcohol limit from 0.10 to 0.080. As a result if a valid breath or blood test is obtained and your blood alcohol level is above 0.080 you will be charged with a DUI. This DUI charge will occur even if your driving is acceptable and even if you have shown few or no signs of intoxication.
As explained above, the Legislature provided a statute to define a DUI. However, this statute fell short in defining “being under the influence” or “affected by.” As a result we have to rely on case law for the definition. The case State v. Hurd, 5 Wn.2d 308, 105 P.2d 59 (1940), holds that “under the influence of” and “affected by” have the same meaning. This case, which is still good law, was decided in 1940 and the practice of DUI law today has little resemblance to that in 1940. In 1976, the Court of Appeals further defined the element of “affected by” as having one’s driving “lessened in any appreciable degree.” State v. Hansen, 15 Wn. App. 95, 546 P.2d 1242 (1976).
This vagueness cuts both ways. On one hand an officer may determine that a particular driver is “affected by” alcohol or is “under the influence” based on subjective factors only and charge the driver with the a DUI. Alternatively, if this driver is charged with a DUI using these vague definitions it gives a good DUI attorney plenty to play with and a viable defense.
The lawful use of a drug is not a defense to the charge of a DUI or being in physical control of a motor vehicle. You may innocently use prescription drugs that have been prescribed by your doctor and have no idea of the harmful affects of the drug you are using. This is absolutely no defense to a DUI charge.
In addition to the consumption of legally prescribed drugs and driving while under the influence, it is also a crime to drive while under the influence of illegal drugs. These drugs include marijuana, methamphetamines, cocaine, heroin, and so on. These drugs can have very harmful affects on your ability to drive a motor vehicle, even more so when combined with alcohol.
To prove the consumption and being under the influence of drugs, police attempt to obtain statements from the driver, use circumstantial evidence such as prescription bottles in the vehicle, or more scientific methods such as DREs (see Chapter Two) or a blood test. The only solid way the prosecutor can prove with any certainty that you were affected by drugs is by a blood test However, even this is not enough. The prosecutor still needs to prove that the amount of a certain drug found in your system is enough affect your ability to drive. An expert is needed to perform this task.
No comments:
Post a Comment