Absolutely! In Washington, the State definitely has the advantage. Unlike neighboring Oregon, where weed is also legal, Washington prosecutors do not have to show impairment.
In Washington, the prosecutors can establish the elements of a DUI charge in two ways. The prosecutor can prove you were over the legal limit of .08 or, under the second prong, “affected by,” which is supported by the officer’s police narrative and investigation. With marijuana DUIs, the prosecutor simply establishes that you met the per se standard of 5 ng/mL.
What if I “know my limits” so my standard is different?
That means absolutely nothing. There is no subjective defendant standard for DUIs. The prosecutor does not consider individual circumstances and is not going to give you a “pass” because you have used marijuana for 10 years and know that you are not impaired. That’s the really risky part about using marijuana in the State of Washington—it’s just a per se standard. If you meet the THC level, you will be charged with DUI. The same is generally true for alcohol. Even if you blew a .05 in the breathalyzer, if you were booked into jail, it means the officer’s report (and likely the prosecutor’s review of that report) will lead to a charging of DUI under the “affected by” prong. Basically, that officer wrote a report that makes you look like you were impaired.
What if they took my blood but let me go?
This is common. Unfortunately, most people do not understand why they were let released so they end up in more trouble later. Unless you did not drink or use marijuana (so your blood is totally clean), you are likely be charged with DUI at a later date.
The reason they “let you go” is that the crime lab is backed up by 6-12 months. If the prosecutor charges you with a marijuana DUI, you have the right to a speedy trial (90 days) but the prosecutors evidence won’t be back in time. So, either the officer will release you after drawing blood or the prosecutor will quickly “decline” charges prior to Arraignment. This allows the prosecutor to sit and wait for your blood results and then charge you 6 or 12 months later.
Want to Know More About Per Se Standards for DUI / dWI charges in Washington?
How will I know if I am being charged with a DUI?
The address on file with the Department of Licensing should be where your Summons is mailed. If you don’t get it, that is on you. There is no “pass” if you did not receive the Summons. It is your duty to have a good address on file so legal documents make it to you. If you miss the Arraignment, a warrant will be issued when you do not appear for court. That is a terrible way to start a DUI case from the defense perspective.
How can I assure that I get notice about any future criminal charge?
You can try to contact the court every week to see if a Summons has been issued. If you are really diligent and the person on the other end is knowledgeable, you should be able to figure this out.
Witt Law Group also monitors cases for clients. We charge a monitoring fee and, if you get charged, we apply the monitoring fee toward your criminal defense flat fee. This way, if you don’t get criminally charged, you don’t owe us any additional legal fees. This works very well for our active duty military clients and for those who work at PSNS or other contracting jobs that frequently take them out of state or the country.
Why can’t the Public Defender monitor this for me?
A Public Defender is assigned once you are Arraigned. This means you have no right to counsel until you are criminally charged and the Arraignment occurs. Hence, the “waiting period” while your blood is at the crime lab does not invoke your right to counsel. You cannot receive legal advice from the Public Defender until after you are Arraigned and they will not monitor your potential case for criminal charging. Additionally, the Public Defender cannot handle the issues with Department of Licensing (CIVIL suspension of your license) so this process might be occurring even before you are made aware that you have a criminal court date.
If you were pulled over for DUI and are unsure if you are facing criminal charging, contact a criminal defense attorney in the area where you were pulled over. It is critical that you get local advice on the practices of that area. Waiting is never a good idea. If your address is not up to date or you leave town, it is almost certain you are going to FTA at your Arraignment, get a Warrant, and make negotiation of your case much worse.
If you have a case in Kitsap County and would like assistance with a pending or potential DUI / DWI or Physical Control charge, contact our office 7 days a week. 360-792-1000