You had a beer, maybe two, at happy hour. Maybe you had dinner, drank some water and coffee, or waited an hour or two before you head home, believing you were okay to drive. Then, as luck would have it, you got pulled over. Feeling confident because you “haven't had that much,” you provided a BAC breath sample at the station, or a portable breath test out on the street. Maybe the result was a .05, and because you know that .08 is the legal limit, you didn't think you could be charged with a DUI, but alas, you were. Why?

In Washington State, you do not have to be over the legal limit to be charged with or convicted of a DUI. Even if a person's blood alcohol concentration level is below the legal limit of .08, but over .000, a DUI charge can result if the person displays signs consistent with a person who is under the influence of alcohol or drugs. This can be determined by performing field sobriety test, and police officers will not always tell you how you are performing while you are taking the tests. Officers also use a DUI checklist when conducting a DUI investigation. There are boxes for the officer to check that indicate your attitude, your coordination, the neatness of your clothes, your eyes (e.g. bloodshot or watery), your facial color, the strength of the odor of alcohol on your breath, and the quality of your speech.  

According to RCW 46.61.502 (in relevant part):

“(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.”

And:

“(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.”

The issue is not whether you are driving with a BAC of .08 or higher, the issue is whether your driving has been impaired by alcohol. If you feel that this article may apply to you, we suggest you contact an attorney, or contact the Offices of Raymond Ejarque for a free consultation. We provide an affordable DUI defense.