A new 2023 law could make you guilty of the crime of unlawful possession of a firearm in the second degree if you have custody, control, or possession of a firearm after you have two DUIs on your record within 7 years. The shocker for many will likely be the fact that even a dismissal or reduction to a lesser charge through a pre-trial diversion or stipulated order of continuance will still count as “prior” for purpose of DUI history.
The new law
You can read the law in its entirety here. It became effective July 23, 2023.
DUI History Is Based On Your Initial Charging
All offenses are based on the charging of the offense and not the resolution of the case. Therefore, a DUI that was resolved as a Negligent Driving in the First Degree still counts as a prior offense because it was originally charged as a DUI.
The law counts all resolutions that are short of a complete dismissal at the outset of the case, which means diversion agreements and deferred dispositions are counted, including offenses that occurred as a minor. Finally, the law will apply even if your prior conviction or deferred resolution is out of state.
It will be very important to share your full criminal history with your defense attorney. This will include out of state history and even investigations that have yet to result in a criminal charge. Do NOT hide criminal history from your lawyer. The prosecutor will eventually run a Triple I and find all out of state history prior to the case resolving. If your attorney did not know about out of state convictions or pending cases prior to resolving your Washington case, you could be facing some really negative consequences.
All past, present, and potential criminal cases will be relevant! If you were investigated for DUI but you have yet to be charged or receive a Summons, it is especially critical to divulge that to your defense attorney. If you are unsure what is relevant, share everything!
Who Will Be Impacted By The New Law?
Obviously, if you do not own a gun or have any interest in a firearm, this is not an issue for you. However, this may be an issue for someone who does not own a firearm now but, later, feels they need to purchase a firearm for self-defense. That will not be possible.
The clear impact will be to military service members, those in law enforcement, collectors, and individuals who use firearms for hunting. You will not be able to purchase, possess, or own any firearms. If you live with someone who has firearms, that will be a problem. If you share a residence where you have access to firearms, you are technically in custody or possession of a firearm.
Exceptions to the rule
How Can My Defense Attorney Help Me
This law is very tough and, as of now, no real work arounds. The challenge is that the gun rights restriction follows the charging of the crime and not the resolution. That means, even if your DUI is dismissed through a contract with the state, the DUI was still charged. So, you fall under the law.
The one work around that defense could try (but the prosecutor is highly unlikely to do) is to request a dismissal of the original charge so the case can be re-filed under a new law violation that does not count as DUI or Physical Control, such as Negligent Driving in the First Degree. In that case, if the case is not a DUI at charging (because it was dismissed and refiled with a new cause number), the Negligent Driving can not be counted as one of the DUIs under the rule. Again, this is highly unlikely and we would venture to guess that a prosecutor will refuse to do this in 99.9% of cases.
Obviously, never drink and drive. And, if you are a regular user of marijuana, do not drive unless you know your THC levels. People who consume or smoke on a daily basis are almost always over the per se standard of 5 ng/mL. This is true even when it has been many hours between use and driving.
Remember, unlike many other states, in Washington, the prosecutor does not need to prove impairment under the law. If you are over the per se limit, you are DUI.
Additionally, you do not need to be at or over the per se limit to be charged with DUI. Every month we get cases in which the breathalyzer is as low as .04 at the station. The state proceeds with the prosecution under the “affected by” prong of the statute based on the officer’s report. Typically, these reports will have mention of lane travel or some other reason for probable cause that substantiates you were affected by alcohol or drugs to an appreciable degree.
These “low blow” DUIs make clients pretty furious when they find out the state is not dropping the charges (we completely understand!). However, this has been going on for the two decades we have been lawyers and the practice is not changing. Your best option is to hire someone who is well versed in how these cases can be resolved most effectively and with the least impact to your life.
If you are facing a DUI or Physical Control charge and need to consult with a lawyer about your options, we are here 7 days a week. Give our office a call for a free consultation. (360) 792-1000.