Minor DUI in Washington State - RCW 46.61.503

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/

 

Juvenile DUI (Minor DUI)

RCW 46.61.503

Under Washington law, it is a crime for a person under the age of 21 to drive or to be in physical control of a vehicle after consuming alcohol with an alcohol concentration over 0.02. This is a strict standard and is treated with zero tolerance.  The amount of alcohol required to get to a level of 0.02 is minimal, less than one beer or a glass of wine. Such a violation has grave consequences and may result in a criminal charge, an arrest, license suspension, and possibly jail.

The statute for a juvenile DUI, RCW 46.61.503, reads as follows:

(1) Notwithstanding any other provision of this title, a person is guilty of driving or being in physical control of a motor vehicle after consuming alcohol if the person operates or is in physical control of a motor vehicle within this state and the person:
(a) Is under the age of twenty-one;
(b) Has, within two hours after operating or being in physical control of the motor vehicle, an alcohol concentration of at least 0.02 but less than the concentration specified in RCW 46.61.502, as shown by analysis of the person's breath or blood made under RCW 46.61.506.

A “minor DUI” is a misdemeanor and has a maximum penalty of 90 days in jail and a $1,000 fine.  Additionally, in all likelihood there will be probation for up to two years and the conditions imposed by the court at sentencing will certainly include an alcohol assessment and follow up (an 8 hour alcohol awareness class or lengthy alcohol treatment), the attendance at a DUI victim’s panel, and possibly community service or jail time.

Additionally there is also the possibility of a 90 day license suspension imposed by the Department of Licensing for those arrested for a minor DUI.  This suspension occurs irrespective of the outcome in the criminal case.  See the Chapter on the Department of Licensing for more details.

Finally, if you are a minor and have a breath rest result of .08 or greater, or if the prosecutor can prove that you were impaired at the time of driving, you can also be prosecuted for an adult DUI and be facing the same consequences, including mandatory jail.

 

Sometimes a DUI is not a DUI in Washington - this is when it's a "Physical Control"

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/

 

Physical Control

RCW 46.61.504

The law states that you are in physical control of a motor vehicle if you are in a position to physically operate and control a motor vehicle.  You do not need to be moving the car or even have moved the car to be properly charged with the offense.  Over the years this law has been somewhat refined and now there is a requirement that you not only be in a position to physically operate a motor vehicle but also have the means to do so.  Typically this involves having the ignition keys in close proximity or in the ignition switch.

The statute for Physical Control, RCW 46.61.504, reads as follows:

(1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:
(a) And the person has, within two hours after being in actual physical control of the vehicle, 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.

The statute for this offense is not very helpful in defining the element of “physical control.”  However, case law helps to a degree as it is defines being in “actual physical control of a motor vehicle” as having the authority to manage a reasonably operable vehicle or is in a position to regulate movement of the vehicle. State v. Smelter, 36 Wn. App. 439, 674 P.2d 690 (1984).

In a practical setting, if you are “drunk” and in your car with the engine running to warm your vehicle while you sober up you have committed a crime.  Therefore, even though you have made the correct decision not to drive, you can be charged with physical control.  Sounds harsh and perhaps it is.

The statute does help in defining the defense to this crime.  The statute states specifically that being “safely off the roadway” is a defense to the crime.  A regular DUI is not afforded such a defense.  State v. Hazzard, 43 Wn. App. 335, 717 P.2d 282 (1986), State v. Beck, 42 Wn. App. 12, 707 P.2d 1380 (1985), review denied, 105 Wn.2d 1004 (1986).   Because this particular defense is so valuable there are many instances where officers actually charge a DUI rather than physical control to eliminate the possibility of this defense.  To do so the driver must actually be seen driving prior to pulling off the roadway.

In utilizing the defense of safely off the roadway you must remember the definition of “roadway,” as it is rather broad.  “Roadway” is defined as “that portion of a highway improved, designed, or used for vehicular travel exclusive of the sidewalk or shoulder.” RCW 46.04.600.  Interestingly, a private parking lot may be considered a roadway, if there is a threat posed to the public.  Edmonds v. Ostby, 48 Wn. App. 867, 740 P.2d 916, review denied, 109 Wn.2d 1016 (1987).

 

The DUI Statute for DUI Cases in Washington State - RCW 46.61.502

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.

 

DUI cases in Snohomish and Skagit County - is the horizontal gaze nystagmus only caused by alcohol?

The horizontal gaze nystagmus is an eye test that is typically used in DUI cases in Snohomish County, Skagit County, Island County and King County to detect alcohol consumption and help determine whether the driver is possibly a DUI driver.  One of many questions is whether nystagmus (involuntary jerking of the eye) actually determines alcohol impairment.  Categorically the answer is, maybe but possibly not.  To wit, nystagmus may be caused by many other factors. The court, in State v. Witte, 251 Kan. 313, 326, 836 P.2d 1110, 1119 (1992) said:

Nystagmus can be caused by problems in an individual's inner ear labyrinth. In fact, irrigating the ears with warm water or cold water...is a source of error. Physiological problems such as certain kinds of diseases may also result in gaze nystagmus. Influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff's Syndrome, brain hemorrhage, epilepsy, and other psychogenic disorders all have been shown to cause nystagmus. Furthermore, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption. (Quoting Pangman, Horizontal Gaze Nystagmus: Voodoo Science, 2 DWI J. 1, 3-4 [1987])

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/

 

DUI Penalties in the State of Washington for a Second Offense

2nd DUI OFFENSE IN THE LAST 7 YEARS

Breath Test Under .15% or No Breath Test but Not A Refusal

•30 days in jail minimum PLUS 60 days EHM

•$1078 total minimum fine w/ statutory assessment

•2 year license revocation

•SR-22 Insurance for 3 years

•Probationary license for 5 years after reinstatement

•Probation monitoring by the court for up to 5 years

•IID for a minimum of 1 year, up to 5 years

•Alcohol evaluation and treatment

Breath Test .15% or Higher or Refusal to Take Breath Test

•45 days in jail minimum PLUS 90 days EHM

•$1,503 total minimum fine w/ statutory assessment

•2 year license revocation

•SR-22 Insurance for 3 years

•Probationary license for 5 years after reinstatement

•Probation monitoring by the court for up to 5 years

•IID for a minimum of 1 year, up to 5 years

•Alcohol evaluation and treatment

 

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/

 

DUI Penalties in the State of Washington for a Third Offense

3rd DUI OFFENSE IN THE LAST 7 YEARS

Breath Test Under .15% or No Breath Test but Not a Refusal

•90 days in jail minimum PLUS 120 days EHM

•$1,928 total minimum fine w/ statutory assessment

•3 year license revocation

•SR-22 Insurance for 3 years

•Probationary license for 5 years after reinstatement

•Probation monitoring by the court for up to 5 years

•IID for a minimum of 1 year, up to 10 years

•Alcohol evaluation and treatment

Breath Test .15% or Higher or Refusal to Take Breath Test

•120 days in jail minimum PLUS 150 days EHM

•$2,778 total minimum fine w/ statutory assessment

•4 year license revocation

•SR-22 Insurance for 3 years

•Probationary license for 5 years after reinstatement

•Probation monitoring by the court for up to 5 years

•IID for a minimum of 1 year, up to 10 years

•Alcohol evaluation and treatment

 

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/

 

DUI Stops - NHSTA's list of possible DUI driving behavior

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/

 

NHSTA provides a list of suspicious driving mannerisms that includes the percentage chance (according to the DOT) that a driver at night is legally drunk. Here is the list:

Turning with a wide radius	65%
Straddling center or lane marker	65%
Appearing to be drunk (e.g. slouching in the seat, gesturing erratically or obscenely, eye fixation, tightly gripping the steering wheel, face close to the windshield, drinking in the vehicle, head protruding from the vehicle)	60%
Weaving	60%
Driving on other than designated roadway	55%
Swerving	50%
Slow speed (More than 10MPH below speed limit)	50%
Stopping (without cause) in traffic lane	50%
Following too closely	50%
Drifting	50%
Tires on center or lane marker	45%
Braking erratically	45%
Driving into opposing or crossing traffic	45%
Signaling inconsistent with driving actions	40%
Slow response to traffic signals	40%
Stopping inappropriately (other than in traffic lane)	35%
Turning abruptly or illegally	35%
Accelerating or decelerating rapidly	30%
Headlights off	30%