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The Defense of Driving Under the Influence Cases

Understanding Washington State DUI Charges

In Washington, driving under the influence (DUI) may be charged and proven in one of two ways:

  • Driving or being in physical control of a motor vehicle with a blood alcohol concentration of .08% or greater or having 5.00 nanograms or more of THC, per milliliter of blood within two hours of driving.
  • Driving or being in physical control of a motor vehicle while under the influence of or affected by intoxicating liquor, marijuana, or any drug.

Physical Control of a Vehicle

In Washington, you don't have to be driving under the influence to be charged with a crime. Just being in your car with your keys accessible may be considered being in "physical control” even if your car's engine is not running. Court's have found people to be in physical control of a vehicle if the car keys were in the ignition or within a driver's reach on a seat, the floor, a pocket or purse. Additionally, if a passenger reaches over and grabs the steering wheel, the passenger could be considered “in physical control" even if only momentarily.

Driving While Under the Influence of Drugs or Alcohol 

While one person may feel fine after a few beers, another person may be impaired. Because people respond differently to alcohol and drugs, Washington prohibits driving while one is feeling the intoxicating effects of drugs and alcohol. Typically, this type of charge is based on an officer's observations and judgment. If the person is observed driving at a very slow rate of speed, stopped in the middle of an intersection, taking risks behind the wheel, appears disoriented, or has difficulty standing, these may all be indicators of being under the influence, which could result in a DUI charge.

Refusing to Submit to a Breath or Blood Test

Refusing to submit to a breath or blood test may result in a one-year administrative license suspension by the DOL. This is true even if DUI charges are never filed. The arresting officer is required to provide you notice of your right to refuse testing and of the license consequences of a refusal. If you refuse, the officer will notify the DOL of your refusal and may seek a warrant to draw your blood for testing anyway. In that situation, you will likely suffer the DOL consequences of a refusal despite being required to submit to a blood test pursuant to a judge's order. You have a right to consult with an attorney before you agree to any test, it is always wise to do so. If you don't know an attorney to call, you are welcome to call Attorney Sheri Pewitt. Otherwise, law enforcement has the number for the on-call public defender. The on-call public defender will answer your questions regardless of your financial circumstances. No financial screening is required to speak to an attorney, even a public defense attorney, before you submit to testing.

Driving with a .08% Blood Alcohol Concentration

A DUI charge may be filed without a breath or blood test, based on the subjective assessment made by the arresting officer. Driving with a .08% blood alcohol concentration, however, is considered per se evidence of DUI. It is a mathematical calculation of how much alcohol is present in a person's breath or blood. Even if a person feels just fine, if their breath or blood test registers an amount of .08 or greater, they will be charged with a DUI. However, there are many steps involved in the testing of breath or blood that may impact the reliability and accuracy of a test result. An experienced DUI attorney will know what to look for to determine if the testing was properly done.

Driving with 5 Nanograms or More of THC

Like driving with a .08% blood alcohol concentration, driving with 5.00 nanograms or more of THC is considered per se evidence of DUI, even if there is no bad driving. Law enforcement collects a blood sample and sends it to the lab for testing. Even if a person has a high tolerance for THC, and is not feeling the intoxicating effects, the mere presence of 5.00 or more nanograms of THC will result in a DUI charge. Even if your test result is below the per se legal limit, you may still be charged with a DUI under the impairment prong of the DUI statute. Some prosecutors in Washington are charging drivers with DUI who had test results well below the per se limits for alcohol and THC. However, there is reason for hope. There are many steps involved in the collection and testing of blood that may impact the reliability and accuracy of the test results. See Pewitt Law's section about blood testing for more information.

Understanding Defenses to DUIs

Just because you have been charged with a DUI does not mean you are guilty of impaired driving. You need an attorney experienced in DUI cases to review the facts and circumstances unique to your case.

The Stop of Your Vehicle

An experienced defense attorney will review the basis for the stop of your vehicle. Law enforcement must have a constitutional basis for stopping your car. If the stop appears unconstitutional, your attorney will challenge the basis for the stop. If the court agrees the stop was not constitutionally valid, the case will be dismissed.

Was there Reasonable Suspicion to Investigate?

An officer lacking probable cause but having a reasonable suspicion that a person is, was, or is about to be involved in criminal conduct, may make an investigative stop to determine identity and purpose, and in connection may conduct a limited investigation. The inquiry involves reasonableness of the purpose of the stop, physical intrusion on the liberty of the person and the duration of the detention. If the detention does not comport with constitutional parameters, your attorney will challenge the investigatory detention as an unlawful seizure. If the court agrees, the case will be dismissed.

Was There Probable Cause to Arrest?

An experienced DUI attorney will also examine the basis for the arrest itself. Factors that law enforcement consider in making a DUI arrest decision include the officer's observations of your vehicle in motion, observations made during personal contact with you, any statements you make and the results of any pre-arrest screening such as field sobriety tests and the portable breath test. Most attorneys familiar with the DUI arrest protocol will advise clients to decline all field sobriety tests including the roadside portable breath test and decline to answer all officer questions beyond providing your license, registration, and insurance. After reviewing the basis for the arrest, if your attorney believes there was no probable cause for your arrest, a hearing on the issue will be sought.

Were Your Constitutional Rights Honored?

After reviewing the reason for the stop and the basis for your arrest, an experienced defense attorney will evaluate your case with the following constitutional questions in mind:

  • Are there Miranda issues? Miranda v. ArizonaState v. Terravona
    • Were the Miranda rights recited?
    • Was there a knowing, voluntarily, and intelligent waiver of those rights?
    • Were my client's statements voluntarily made? Colorado v. ConnellyState v. NogueiraState v. Stzer
  • Was my client's right to an attorney honored? State v. Templeton
    • Was an attorney requested?
    • Was an attorney provided?
    • Was questioning resumed after the request for an attorney was made?
  • Is there a Corpus Delecti issue? State v. Pietzak

Were You Actually in Physical Control?

Depending on the facts, you may be able to challenge whether you were in physical control of the car at the time you were arrested. Each case is different and being parked safely off the roadway is an affirmative defense to a charge of physical control. An attorney experienced in DUI law will examine the facts of the case carefully, determining whether this may be a basis for a challenge.

Accuracy of the Drager Alcotest 9510 Instrument

When an officer administers a breath test in Washington, the officer is likely using the Drager Alcotest 9510. Even if a court accepts the state toxicologist's claim that the Drager Alcotest 9510 is an accurate and reliable instrument, it doesn't operate perfectly on its own. There is a maintenance schedule that must be followed to ensure the validity of the test results. The Drager Alcotest 9510 must be calibrated on a regular basis. The breath test instrument may malfunction for any number of reasons and routine quality assurance schedules must be adhered to. Further, the result could be influenced by medical conditions such as GERD or ketosis. An experienced DUI lawyer will examine the Draeger test results, the maintenance logs, the instrument calibration and other issues to determine if a problem existed that may render your test results invalid.

Accuracy and Reliability of a Blood Test

Similarly, an experienced defense attorney will examine blood collection and testing processes to determine if there may be an error in the blood test result. For example, law enforcement may collect blood in expired tubes or the phlebotomist may under-fill the tubes. There may be a lack of adequate documentation of the chain of custody of the blood after its collection. The laboratory testing the blood may fail to calibrate their instruments or follow the processes required by their accrediting bodies. In cases involving blood tests, if the facts warrant it and the client agrees, Pewitt Law often retains the services of a forensic expert to audit the specific processes the lab used to test her client's blood samples.

Facing a DUI Charge?

Many people feel helpless and hopeless after a DUI charge. However, you may actually have a defense to these charges. DUI cases come with both criminal and civil penalties. Washington state limits the amount of time you have to mount a challenge to the charges. Sheri Pewitt is a member of the National College for DUI Defense. She understands not only the constitutional issues, but also the scientific issues entwined with DUI cases.

For effective, comprehensive DUI defense, contact Pewitt Law, PLLC today at 206.941.0009.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.