During holidays with extra DUI patrols, we try to warn people about the risk of facing a DUI criminal charge despite a lack of impaired driving. Since there are more emphasis patrols by law enforcement during the Fourth of July holiday, the odds are greater that some folks will learn this the hard way this week. The only way to completely avoid the DUI risk is to abstain from all alcohol if you are driving (not even one drink!) and to avoid consuming any marijuana for an extended period (days) prior to driving.
Impairment Is Not A Requirement Of A DUI
In Washington (unlike a neighboring state), our DUI statute permits a prosecution under two prongs, where one prong does not require any proof of impairment. A portion of the statute pertains to per se standards, such as the .08 for alcohol and 5 ng/mL for THC. If you meet one of these two standards, you are DUI regardless of the quality of your driving.
However, it is just as easy to be deemed DUI even if you do not meet these per se standards because the officer can write a report and make observations that support a DUI under the “affected by” prong. This means, there is something in your blood that is affecting your driving to such an appreciable degree that you are considered “impaired” and can be arrested you for DUI.
Sometimes, the impairment comes from a sleep aid you took the night before and, other times, it might be medication for mental health. Perhaps you only had one glass of wine but it combined with your medication to make your driving unsafe. And, sometimes, there is not actual impairment but the report is written in a way that a prosecutor will side with the officer (as they do 99.9% of the time) and charge you with DUI.
For an alcohol-related DUI, you might squarely fit into the “over an .08” prong. However, you might be an .05 yet still be prosecuted under the “affected by” prong.
Do not let any non-lawyer tell you that this cannot happen! We have no fewer than a dozen cases a year where the client is well under the .08 standard. You can kick and scream all you like about the unfairness but, at the end of the day, you are still facing a criminal charge.
The THC DUI standard is tough for most people to wrap their head around. The biggest problem is that the 5 ng/mL has absolutely nothing to do with impairment. When politicians were arguing about whether to make recreational marijuana use legal, the opposing interests agreed upon an arbitrary number that would serve as the per se standard similar to the alcohol-related DUI.
What Is The Difference Between Alcohol and THC DUI Standards?
Unfortunately, alcohol and THC do not operate the in the same way on the brain in terms of impairment. Ethyl alcohol is water soluble and its level circulating and impacting the brain is fairly accurately measured by testing the level in the blood. THC is fat soluble and is stored in fatty tissues. And, while it is present in the blood during active use, it can also be released from fatty tissues back into into the blood stream long after inhalation or ingestion.
In fact, it is not uncommon to find measurable THC in the blood up to 30 days after use. Therefore, if you are a regular user or ingest marijuana in the evening to sleep, you should consider yourself DUI every day. Remember, if you want to avoid a criminal charge, it does not have to do with whether you are actually impaired, it is whether your blood test will meet the per se standard.
Will I Be Deemed DUI?
It would be nice to have a clear chart to post here but, unfortunately, that just won’t work. If you are drinking alcohol, you run the risk of being arrested for DUI. We have had clients who only consumed one drink but failed to recognize that their doctor-prescribed medicine would cause a severe reaction. They still faced a DUI charge.
We have had clients who went out to dinner, consumed two glasses of wine or beer, and their BAC was .05 and below, yet they were deemed DUI based on the officer’s reports, which supported impairment. They also faced criminal charges. Prosecutors do NOT drop DUI charges because your BAC is below an .08 so do not listen to friends who are from other states or do not practice criminal law in Washington.
As far as regular marijuana users are concerned, you are at the highest risk to face a DUI charge despite zero impairment. Hopefully, you are not pulled over and do not face inquiry about your use. However, if an officer suspects you have used marijuana or are impaired, regular users are very likely to be charged with DUI once the blood draw results are returned from the Toxicology Lab. Currently, those results are being returned 6-18 months after the initial stop. So, make sure you keep your mailing address up to date with DOL to avoid missing the Summons and getting a Warrant for your arrest.
Emphasis Patrols = More Risk To Be Deemed Impaired
While you may believe you are not impaired and should not be prosecuted, once arrested and/or a blood draw taken, your beliefs do not matter. A pending criminal charge can causes serious problems for employment, housing, loans, security clearances, professional licenses and military service. And, if you refuse to submit to the blood draw or BAC, it is just as likely (if not more) that criminal charges will be filed. Washington is an implied consent state, which means you agree to submit to the test by availing yourself to the privilege of driving on our roads. Hence, if you do not comply or consent at the time of the law enforcement stop, you will face tougher penalties, including a longer Department of Licensing administrative suspension of your driver’s license.
If you are moving, being re-stationed, or simply want to have someone else double check whether a criminal charge will surface, we offer a low cost monitoring service. If you are unsure about what transpired after a stop and whether the prosecutor will file charges later, reach out to our office. We are here 7 days a week to answer questions about criminal cases in Kitsap and Thurston Counties as well as cities nearby. 360-792-1000
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