The law on alchohol related offenses is complex. There are specific statutes concerning these offenses, and there are appellate court decisions interpreting those statutes, and the defenses and penalties associated with them.
The following is basic information on the law and what to expect in the way of penalties, conditions of sentence, including collateral consequences, as well as any DOL administrative action.
We have also included information on the types of evidence typically seen in a DUI related offense.
You should in no way rely solely upon this information if you or a loved one has been charged with a DUI, Physical Control or Minor DUI, as this information is not a substitute for the advice of an attorney trained in DUI defense. The lawyers at Stewart MacNichols Harmell, Inc., P.S., are available 24 hours per day, 7 days per week to answer your questions, and the first call and consultation are free.
The elements of DUI related crimes such as DUI/DWI, Physical Control and Minor Operating a Motor Vehicle After Consuming Alcohol are set forth in the Revised Code of Washington.
Be aware that theses statutes may have been interpreted by courts in a number of significant decisions that may or may not be relevant to the circumstances surrounding your specific case.
For a complete discussion of the elements, and specifically how the law relates to your case, it is important to consult with a lawyer. The lawyers at Stewart MacNichols Harmell, Inc., P.S., are available 24 hours per day, 7 days per week to answer your questions, and the first call and consultation are free.
•·Under the Revised Code of Washington, Section 46.61.502,
(1) A person is guilty of driving under the influence of intoxicating liquor or any drug if the person drives a vehicle within this 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; or
(b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood;
(b) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or
(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.
•·Under the Revised Code of Washington, Section 46.61.504,
(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; or
(b) The person has, within two hours after after being in physical control of the vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person's blood;
(b) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or
(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.
(2) No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.
•·Under the Revised Code of Washington, Section 46.61.503,
(1) 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) And the person has, within two hours after operating or being in physical control of the motor vehicle, either:
(i) an alcohol concentration of at least 0.02, as shown by analysis of the person's breath or blood; or
(ii) a THC concentration above 0.00 but less than the concentration specified in R.C.W. 46.61.502, as shown by analysis of the person's blood.
The penalties that may result from a conviction for a DUI related offense are set forth in the Revised Code of Washington. Keep in mind that these statutes have been interpreted by the appellate courts in a number of significant decisions that may or may not be relevant to the circumstances surrounding your specific case. Also, the specific judge or prosecutor that is handling your case may their own ideas as to an appropriate sanction for a DUI related conviction.
There are also mandatory minimum penalties that the court must impose for convictions of certain alcohol related offenses, including Driving Under the Influence and Physical Control.
A person should expect that if he or she is convicted of an alcohol related driving offense the court will sentence them to the maximum penalty, and then suspend some portion of the sentence on the condition that they comply with the conditions set by the court. For instance, on a first offense DUI, the court might sentence to 364 days in jail with 363 days suspended, and a $5000.00 fine with $4650.00 suspended. What this means is that the person serve one day in jail and pay a $350.00 fine, plus costs and assessments, and the remainder of the jail and fine is "hung over their head" for up to five years. Part of that jail and fine can be imposed by the court should they fail to comply with any of the conditions of your sentence.
For a complete discussion of the penalties, and specifically what penalties and other related consequences should expect should there be a conviction in your case, it is important to consult with a lawyer. The lawyers at Stewart MacNichols & Harmell, Inc., P.S., are available 24 hours per day, 7 days per week to answer your questions, and the first call and consultation are free.
Under Washington law, the majority of Driving Under the Influence and Physical Control charges are prosecuted as Gross Misdemeanors. The severity of the jail, fine and license suspension and other penalties and/or requirements of a sentence will depend upon the particular facts of the case, and the defendant’s history of "prior offenses." The penalties and other requirement for a first, second and third or subsequent conviction are set forth at R.C.W. 56.61.5055 and include, amongst others:
-the maximum and minimum jail time, and electronic home monitoring,
-the maximum and minimum fines,
-the period of driver's license suspension,
-the requirement of an ignition interlock device, and/or other monitoring of alcohol use,
-the requirement of an alcohol drug evaluation,
-additional penalties for persons with juveniles in their vehicle under the age of 16, and
-conditions of sentence, the violation of which results in mandatory addtional jail and license suspension.
A person with four or more "prior offenses" within the last ten years, or persons who have ever previously been convicted of vehicular homicide or vehicular assault while under the influence of intoxicating liquor or any drug may be prosecuted and sentenced on a Driving Under the Influence or Physical Control charge as a Felony.
Driving or being in physical control of a motor vehicle while under the age of 21 and after consuming alcohol is a simple misdemeanor punishable by up to ninety days in jail and a $1000.00 fine.
In addition to the conditions discussed set forth in R.C.W. 46.61.5055, the court may set any additional conditions the judge deems appropriate so long as they are reasonably related to the nature of the offense. The court will almost always order that you have no new criminal law violation, not drive without a license and insurance, keep the court apprised of your address, and appear at all future hearings.
On Driving Under the Influence related charges the court will often order that you consume no alcohol, attend a minimum number of alcohol/drug self help groups, such as Alcoholics Anonymous, attend a DUI Victim's Panel and pay restitution for any damages resulting from your arrest and, as noted above, pay costs and assessments,
Costs and assessments can be significant. For each of these charges there is an additional assessment of 70%, as such a $350.00 fine has an additional assessment of $245.00. There is also a breath test assessment of $200.00, a criminal traffic fee of $102,50, and a criminal conviction fee of $43.00. The court may also impose costs associated with the police time and other agency time involved in your arrest, and costs associated with probation. Probation costs can be significant. Depending upon the facts of your case, other costs may be imposed.
If a person's license is suspended as a result of DUI or Physical Control conviction or suspension resulting from an administrative hearing, it will be necessary for his or her insurance company to file proof of insurance (SR-22) with the Department of Licensing before his or her license will be reinstated.
When someone is arrested for a Driving Under the Influence or Physical Control in Washington and has either given a breath sample that is over the legal limit, or have refused to take a breath test, the Department of Licensing (DOL) will take actions to administratively suspend his or her license.
The length of any administrative suspension will depend upon the facts alleged in the case, and your prior history of DUI related administrative suspensions and are set forth at 46.20.3101.
Scheduling a Hearing
Because the arrest triggers specific time requirements with regard to requesting a hearing to challenge the Department of Licensing Administrative Suspension, often the first thing that must be addressed following a Driving Under the Influence or Physical Control arrest is the scheduling a Department of Licensing Implied Consent Hearing. As such, a person who has been arrested should speak to an attorney as soon as possible for assistance in scheduling this hearing.
The arresting officer should have punched a hole in the driver's license of the arrested person and provide him or her with a form to request a hearing. To request a hearing the person completes the top of the form and sends it to the DOL along with a fee or a waiver of fee based upon indigency. These forms are also avaiable on-line. Again, be aware that there is a very limited window of time of following the arrest to request this hearing.
If a person fails to timely request this hearing, he or she will lose the right to challenge any DOL action to administratively suspend your license.
The arrested person is also expected to cut off the bottom portion of the form and carry it with his or her driver's license. This serves as a temporary license and is valid for a limited number of days from the date of arrest, or until the DOL reaches a decision following a hearing if one is requested.
If the arresting officer fails to punch a hole in an arrested person's license and/or provide him or her with the hearing request form, it is still likely that their license is in a temporary status and valid only for a limited number of days. It is also still likely that the person must request a hearing with the Department of Licensing to avoid an administrative suspension. Either way, it is important to speak with an attorney about protecting your driver’s license.
Once the DOL receives the hearing request, the case is assigned to a hearing officer and a hearing date will be set. The person requesting the hearing, or his or her attorney, will receive a copy of the police report from the Department of Licensing. A hearing date will be set within sixty days of your arrest. In some cases, your hearing may be continued for strategic or other purposes. To accommodate such continuances, the temporary license can remain in effect for up to 150 days, or until the hearing examiner reaches his or her decision.
At the Hearing
The administrative hearing itself will generally consist of a phone hearing conducted by the assigned hearing officer. The arresting officer may be subpoenaed for this hearing.
These hearings differ from criminal trials because unlike a prosecutor in a criminal case who must prove guilt “beyond a reasonable doubt,” the DOL only has to prove its issues by “a preponderance of the evidence.”
The issues to be decided are set forth on the hearing request form and are as follows:
1. Whether you were under arrest.
2. Whether an officer had reasonable grounds to believe you had been driving or were in actual physical control of a motor vehicle in this state while under the influence of intoxicating liquor or any drug, or whether an officer had reasonable grounds to believe you had been driving or were in actual physical control of a motor vehicle within this state while having alcohol in your system of .02 or more and were under the age of twenty-one, her you were under lawful arrest.
3. Whether you were advised of your rights and warnings as required by RCW 46.20.308(2).
4. Whether you refused to submit to the test, or if the test was administered, whether the test indicated an alcohol concentration of 0.08 or more if you were age twenty-one or over, or 0.02 or more if you were under twenty-one.
Following the hearing, the hearing officer may either immediately issue a ruling, or he or she may take the case under advisement. If the ruling is in favor of the driver, there is no license suspension. Where the ruling is in favor of the Department of Licensing, there is an Administrative License Suspension consistent with R.C.W. 46.20.3101. The person whose license has been suspended has four options:
1. Appeal the finding. You have 30 days from the date of the hearing officer's decision to file an appeal in the superior court. As a general rule, the suspension remains in effect during the appeal process.
2. Not Drive. You may simply choose not to drive. This is, of course, always an option and, for some, based upon their individual circumstances, may make sense.
2. Obtain an Ignition Interlock License. There is a strong chance that you will be eligible for an ignition interlock license (IIL) which allows you to drive during the period of the suspension.
To obtain an IIL be required to have your vehicle equipped with an ignition interlock device (IID) and obtain SR-22 insurance, but once those conditions were met and the DOL approves your IIL application, you will be eligible to drive during the period of suspension.
The IIL is not currently available to those who appeal the hearing officer's ruling.
3. Deferred Prosecution. If you are considering petitioning the court for a Deferred Prosecution, you may have the suspension stayed until the time that the court officially grants your deferred prosecution.
DUI and Physical Control are major criminal traffic offenses included under RCW 46.65.030. A person convicted of three of these major offenses within a five year period is labeled an "habitual offender." RCW 46.65.020. An habitual offender's license is suspended for a period of seven years, although there are provisions in the statute for possible reinstatement. RCW 46.65.0070, RCW 46.65.080.
A person convicted of Driving While an Habitual Offender is facing 364 days in jail and a $5,000.00 fine. In addition, his or her license will be suspended for an additional one year.
Of more immediate significance, a conviction for driving while an habitual offender carries a mandatory minimum ten (10) day jail sentence for a first offense, ninety (90) day jail sentence for a second offense, and one hundred and eighty (180) day jail sentence for a third or subsequent offense.
The Breath or Blood TestWhen you find yourself involved in the justice system it is important to have an attorney...
Read More
