Criminal Traffic Defense for Beginners

(206) 467-3190

Getting Started in Criminal Defense: Criminal Traffic for Beginners.  WACDL CLE, September 2012.

Presentation Available here:

Reasons to Avoid DUIs and Criminal Traffic Cases:

  • 1685,504 criminal traffic misdemeanor charges filed in Washington state 2011
  • 38,024 DUI charges
  • 130,480 other criminal traffic violations

Misdemeanor and Gross Misdemeanor

Courts of limited jurisdiction

  • DUI & Physical Control
  • Minor driving after consuming alcohol
  • Driving a commercial vehicle with alcohol in system
  • Reckless driving
  • Hit and run
  • Negligent driving 1st degree
  • DWLS 1st, 2nd and 3rd degree

Felony Criminal traffic

  • Superior court
  • Felony DUI & physical control
  • Vehicular assault/homicide
  • Felony hit and run
  • Eluding

Juveniles and Criminal traffic cases  RCW 13.04.030

If age 16 or older and misdemeanor or gross misdemeanor - filed in court of limited jurisdiction

Licence consequences occur in two categories:

  1. License suspension or revocation as a consequence of a conviction to the crime.
  2. An administrative suspension or revocation based on the arrest fro certain crimes.

License suspensions or revocations as a consequence of a conviction to the crime.

Court send a notification to the DOL of the conviction and DOL sends notification to the driver of the pending suspension/revocation.

RCW 46.20.245

  • 45 days notice of start date of the suspension/revocation
  • In writing and sent via US mail (certification not required)
  • Driver may request an administrative review within 15 days

Review: do the records identify the correct persona and do the records accurately reflect what happened in court?

License suspension or revocation as a consequence of a conviction to the crime

  • DUI
  • Physical control
  • Reckless driving
  • Hit and run attended
  • DWLS 1st and 2nd degree

An administrative suspension or revocation based on the arrest for certain crimes.

Implied consent law:  TCW 46.20.308

  • DUI
  • Physical control
  • Minor driving after consuming alcohol
  • Driving a commercial vehicle after consuming alcohol

Good information found at DOL's web site:  or email:  [email protected]

Temporary Restricted License

Ignition Interlock License (IIL)

Occupation / restricted licence: work, school, court ordered community service, treatment, care of dependent

Visit DOL: Occupational/Restricted Drivers License (ORL)

  • application forms and instructions
  • eligibility requirements
  • fees

Specific Criminal Traffic Charges

RCW 46.20.342 *3rd degree, 2nd degree & 1st degree

DWLS 3rd Degree

  • Generally due to failure to pay traffic ticket or other financial obligation, failure to reinstatement after a period of suspension.
  • Clients can reinstate at any time by paying off financial obligations (or making payment arrangements with court) and reinstating license.
  • Misdemeanor with no mandatory jail or fines
  • No additional suspension of license due to conviction

Re-licensing court

  • Goal is to get people re-licensed and insured.
  • Practice tip - client should use resources to get license back and go into court with a valid license.
  • Often reduced to traffic infractions.

DWLS 2nd Degree

  • Driving during a period of license suspension or revocation when driver is not eligible to reinstate
  • Suspension/revocation can be due to conviction or administrative action.
  • Gross misdemeanor.
  • No mandatory jail or fine
  • Additional 1 year loss of license due to conviction

DWLS 1st Degree

  • Driver already found to be habitual traffic offender under 46.65.020
  • Gross misdemeanor.
  • Mandatory ail time (10 days, 90 days, 180 days)
  • Additional loss of license due to conviction.

Issues for DWLS Cases:

Confrontation clause and DOL records (State vs. Jasper) 174 win. 2d 96,271 P.3rd 876 (2012)

Older cases/license suspensions:

Redmond vs. Moore, 151 Wn. 2d 664 91 P.3rd 875

For DWLS 3rd - make sure reason for suspension is listed in RCW 46.20.342 (i.e. failure to pay child support)

Hit and Run RCW 46.52.020

Felony - accident involving  injury or death

Hit and Run attended

  • Accident involving a vehicle driven or attended by another person.
  • Gross misdemeanor
  • Loss of license for conviction

Hit and Run unattended / property damage

  • Parked car, other property
  • Misdemeanor
  • No loss of license for conviction

Does not matter who was at fault in accident

If convicted, court may not order restitution for the damages in the accident (City of Walla Walla v. Ashby, 90 Wn. App. 560, 952 P.2d 201 (1998).

Compromise of misdemeanor (RCW 10.22.020)

State v. Stalker, 152 Wn. App. 805, 219 P.3d 722 (2009)

RCW 46.61.500

  • Driving with willful or wanton disregard for the safety of persons or property.
  • Gross misdemeanor
  • Loss of license for conviction: if conviction is for reduction from DUI or physical control may required IID and will get credit for any license suspension on the administrative side.

Other ways to commit reckless driving:

Racing (RCW 46.61.530)

  • Willfully comparing or contesting relative speeds (even if under the speed limit).

Embracing (RCW 46.61.665)

  • Unlawful to operate a motor vehicle while embracing another person which prevents the free and unhampered operation of the vehicle.
  • Prima facie evidence of reckless driving.

Impaired Driving

  • DUI (RCW 46.61.502)
  • Per se prong: driving a motor vehicle and having a blood or breath alcohol content of .08 or greater within two hours of driving
  • Affected by prong: driving while affected by alcohol, drugs, or a combination of drugs and alcohol.
  • Physical control: being in "actual physical control of a motor vehicle" 
    • no clear and consistent defition in case law.
    • no pattern jury instruction
    • State v. Smelter, 36 Wn. App. 439, 674 P.2d (1984)
    • In re Arambul, 37 W. App. 805, 683 P.2d 1123 (1985=4)
    • State v. Votaya, 149 Wn. 2d 178. 66 P.3d 1050 (2003)
  • Same per se and affected by prongs as DUI
  • Identical as DUI

Safely Off the Roadway

Affirmative defense created in RCW 46.61.504(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
  • Defendant does not need to personally drive vehicle off roadway, State v. Votava, 149 Wn. 2s 178, 66 P3.d 1050 (2003)
  • Factual issue to be decided by trier of fact. City of Edmonds v. Ostby, 48 Wn. App 867, 740 P2d 913 (1987)

Driver under 21 consuming alcohol (RCW 46.61.503)

  • "Minor DUI"
  • No affected by prong
  • Elements:
    • Driving or being in physical control
    • Under 21
    • BAC of .02 up to .08 within two hours of driving
  • Misdemeanor
    • No mandatory jail/fines
    • No loss of license based on conviction (but administrative suspension due to arrest)

Breath test statistics:

Refussal 17.5% of arrests

  • 14.8% for women
  • 18.4% for men

Breath Test:

BAC Foundation Checklist for Trial

Challenging the breath test:  visi  WSP Breath Test Section Discovery Materials

Other documents to access on WSP Breath Test Section:

Manual and training materials: In addition to materials sent to your client's breath test and the machine. It was performed on - there are general manuals and training materials available on the WSP. BAC web site that you need in every DUI case.

What you need:

  • Datamaster operator: Information Manual
  • Policy and Procedures Manual
  • Officer training manuals: NHTSA DWI Detection and Standardized Field Sobrierty Testing manuals, SFST Refresher Training Course, DRE manuals and ARID maunals
  • Refer to Breath Test Trial Checklist

Public Records Requests

  • Audio and video recordings
  • Cad logs/Journal logs
  • Subpoena Duces Tecums
  • WSP Breath Test Section Records
    • Discovery Report
    • Manuals and Training Materials
  • Public Defender/On Call Attorney Notes
  • Penalties for convictions:
    • Gross Misdemeanor: felony under certain circumstances
    • Mandatory minimum jail and fines
    • Mandatory Ignition Interlock Device requirement
    • License suppression as consequence of conviction.
      • Driver will get day for day credit for any administrative suspension served for same incident.


RCW 46.61.5055 - Long and Complicated!

In materials

  • Washington Courts DUI attachment
  • Plea form
  • Ignition Interlock order

Average jail sentence in 2011

  • DUI - 35 days
  • Physical Control - 56 days
  • Reckless -  15 days
  • Negligent driving 1st - 5 days

DUI, phsyical control and "minor DUI" aresst all trigger administrative actions under implied consent law

RCW 46.20.308

Requesting a hearing:

20 days!

In writing or online:

WAC 308-103-040 (5)

Request for hearing shall include the following information:

  • Full name
  • Mailing Address
  • Daytime phone number
  • Date of birth and
  • Driver's license number

Visit DOL web site:

Visit Washington Courts web site:

Breath Test Section


Attend DUI CLE

Presentation Available here:

Facing a DUI Charge in Washington State?

Give Us A Call: 206-467-3190

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Thank you for taking the time to look through this web site. Please contact us if you would like to meet and further discuss how we may assist you.

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Burg & Lantz is committed to answering your questions about DUI or physical control law in Washington.

We offer a Free Initial Consultation and we'll gladly discuss your case with you at your convenience. Contact us today at 206-467-3190 to schedule an appointment.