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Washington’s DUI Statute: What It Says, and What It Means

Washington’s DUI statute, RCW 46.61.502 states that:

(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, 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) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or

(c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or

(d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.

The statute goes on to state that “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.”

Notably, the statute provides for two possible methods to convict a person of DUI: (1) a per se violation, meaning the level of alcohol or THC in the driver’s blood exceeds the state limit; or (2) that the driver is under the influence of alcohol, intoxicating, or another drug.

The statute also identifies the following affirmative defenses:

  • That the defendant consumed enough alcohol after driving but before the administration of the test so that the defendant’s alcohol concentration was .08 or more within two hours after driving
  • That the defendant consumed enough marijuana after driving but before the administration of the test so that the defendant’s THC concentration was 5.00 or higher within two hours after driving

Using Washington’s DUI Statute to Defend People Accused of Drunk Driving

A closer review of Washington’s DUI statute identifies defenses that can be used to defend someone accused of a DUI.

First and most obvious is that if a defendant can show there is reasonable doubt that they have an alcohol concentration below .08 or a THC concentration below 5.00 they cannot be convicted of a Washington DUI under the per se prong of the statute.

A second defense identified within the text of the statute allows a defendant to prove by a preponderance of the evidence that they consumed alcohol or marijuana after driving but before the test was administered and that this consumption elevated their alcohol or THC concentration such that it was above the legal limit. To use this defense a defendant must notify the prosecutor before the pretrial hearing.

Other Defenses to a Washington DUI Charge

There are other defenses to a Washington DUI charge, such as arguing that the stop or arrest was illegal, that the police lacked probable cause, and claiming other Constitutional protections.

For a stop to be constitutional, police officers must have a reasonable suspicion to believe that a crime or traffic infraction has been committed. Reasonable suspicion can be established through a minor violation like a burnt-out headlight or tail light, rolling through a stop sign, or speeding. Many times minor infractions like these lead to a DUI charge. But if the police officer cannot point to something specific that made them believe a crime or traffic infraction had been committed, the DUI charge cannot stand.

In addition to having a reasonable suspicion that a crime was committed, police must also have probable cause to believe that a driver was under the influence of drugs or alcohol. Specifically, the officer must be able to point to something that makes them believe the driver was under the influence, such as glassy eyes, slurred speech, poor coordination and balance, or the odor of alcohol or marijuana coming from the vehicle.

How a DUI Defense Lawyer Can Help

If you’re facing a Washington DUI charge, an experienced criminal defense lawyer can help. DUI defense attorney Justin Campbell will stand by you, fight to protect your rights, and advise you of the potential consequences of a DUI conviction. Depending on the circumstances of your case he might be able to challenge whether the officer had probable cause to initiate the arrest or the manner in which the evidence was obtained, or negotiate a favorable plea bargain. He will also protect you against overzealous prosecutors, explain the collateral consequences of a DUI conviction, and fight to minimize the impact of a license suspension.

If you were charged with a DUI in Washington, criminal defense attorney Justin Campbell is here to help. Learn why clients choose us, then contact the Campbell Law Firm by calling (360) 588-4111, emailing info@lawjrc.com, or completing our online form.

The Campbell Law Firm proudly represents people accused of crimes in Island County, Oak Harbor, Coupeville, San Juan County, Friday Harbor, and all courts in Skagit County, including Anacortes, Mount Vernon, Burlington, and Sedro-Woolley.

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