Driving Under the Influence & Physical Control Law In Washington
A Washington State DUI (also sometimes called a Washington State DWI) charge has serious and long term consequences. If you are convicted of a Washington DUI/DWI or physical control charge you will be required to serve a mandatory jail sentence and pay mandatory fines and fees. In addition, there will be significant consequences to your ability to drive, including license suspension or revocation, mandatory use of an ignition interlock device, and high risk insurance.
A physical control charge is very similar to a DUI charge. The process is the same and the penalties are the same. In this we site we will often uses the terms interchangeably. However, physical control does have a defense that DUI does not, it is called "safely off the roadway." Read more about this on our physical control page.
DUI / DWI Process
If you are arrested for a Washington DUI or physical control charge, you will most likely be facing two separate legal cases – a criminal charge filed in district or municipal court and an administrative hearing with the Department of Licensing. These two cases are totally separate and the results of one will not necessarily impact the other. It is important to note that you must request a hearing with the Department of Licensing within 20 days of the date of your arrest/notice even though it may take many months for the prosecutor to file criminal charges of DUI or physical control in court.
DUI / DWI Law
For you to be convicted of a Washington DUI charge, the prosecutor must be able to prove that you either:
- Drove a motor vehicle and your breath or blood test was equal to or greater than a .08 within two hours of driving (the “per se” prong); or
- Drove a motor vehicle while affected by alcohol, drugs, or a combination of alcohol and drugs (the “affected by” prong).
To prove a Washington State DUI case the government relies on evidence such as breath or blood test results and the observations made by law enforcement officers. These observations may include descriptions of bad driving, allegations of an odor of intoxicants, watery and bloodshot eyes, slurred speech, poor coordination or other facts that support the government's theory that a driver is under the influence. If a driver refuses to submit to a breath or blood test, or such a test is inadmissible for some reason, the government will rely on the officer's observations to prove the "affected by" prong of the DUI statute.
If the prosecutor believes they can prove that you were “affected” by alcohol, they will proceed on a DUI case even if your breath or blood test result was less than a .08. It is not uncommon to see drivers charged with DUI even with a breath or blood test result well under .08 and we have represented many such clients over the years.
DUI Classified as a Gross Misdemeanor
In most circumstances, a Washington State DUI is classified as a gross misdemeanor. A DUI or physical control conviction is also permanently on your criminal record – Washington law does not allow for the vacation or expungement of a DUI or physical control conviction.
Under certain circumstances, a Washington State DUI is a felony. A Washington state DUI will be charged as a felony if: (1) a driver has four or more prior DUI related offenses within 10 years; (2) a driver has a previous conviction for vehicular assault or vehicular homicide while under the influence; or (3) a driver has a previous felony DUI conviction.
Washington State DUIs are very complicated with extensive relevant case law and statutes. However, in our experience, if you are facing a Washington State DUI there is reason to hope for a good resolution on your case. We find that the majority of our clients have their charges reduced or dismissed.
Statute: RCW 46.61.502
Driving under the influence.
(1) A person is guilty of driving while 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 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.
(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section.
(3) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(4) Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(b) or (c) of this section.
(5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if: (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; (b) The person has ever previously been convicted of: (i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a); (ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b); (iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or (iv) A violation of this subsection (6) or RCW 46.61.504(6).