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"But I Only Had One Drink…" Testing the Limits of Our DUI Laws

Posted by Raymond Ejarque | Sep 13, 2019 | 0 Comments

Did you know in Washington State that you can be charged with a DUI even with a BAC under the legal limit of 0.08? This may seem counter intuitive but it is an unfortunate truth and one to educate yourself on. How can this be, I imagine you're asking–well, friend, it is due to the statutory language capsuled under RCW 46.61.502 which states:

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.

Upon reading this law, you will notice that it is a two pronged device. The first prong being that a person meets the elements of this charge if he/she has an alcohol level of above 0.08 while behind the wheel and the second being that a person may merely be be “affected by” intoxicating liquor while operating their vehicle. It is the secondary portion that enables the State/City to go forth with a DUI charge that is under the legal limit.

In these instances, the prosecuting body relies on the observations of the officer and his or her testimony that the driver appeared “affected” by a substance. Examples of observations would be veering, smell of intoxicants, lack of coordination, and statements made by a suspect.

Although bureaucracy is a staunch adversary in the legal realm you can protect yourself first and foremost by remaining silent. Be cooperative but notify the officer that you would like to speak to an attorney before you answer any questions. If the officer responds to you that you are not under arrest and have not reached the point to invoke this right, ask if you are free to leave. If you are, then do so–if not, stick to your guns and re-request your attorney. Be firm with your rights but not condescending or uncooperative.

Remember, you can catch more flies with honey than vinegar… These responses/repartee give you a better chance for a fairer resolution to any allegation or stop. Your conduct will show the Court you are respectful of the law and expect respectfulness to your rights. Don't be “affected by” someone stifling your guaranteed liberties…there is no second prong that ever allows that.

About the Author

Raymond Ejarque

Raymond Ejarque has practiced law since his admission to the Washington State Bar in June of 1994. He started his career in public interest law helping migrant farm workers and indigents in Texas and Washington State.  Later he worked in Criminal defense as a public defender in Seattle for many y...


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¿Sospecha que la Policia le investiga? ¿Ha sido acusad@ de haber cometido un delito criminal grave o menos grave? ¿Ha sido arrestad@ Por Conducir Borracho?(DUI). ¿Desea limpiar su record criminal? No se preocupe, el Lcdo. Raymond W. Ejarque le puede ayudar.  Se Habla Español – Llamenos para Una Consulta Inicial Completamente Gratuita: (206) 621-1554. El Lcdo.…