Do You Think The Charge Will “Go Away” For That Reason? Don’t Count On it!
In the State of Washington, the DUI statute has multiple prongs and one of the prongs is “affected by”—meaning the cop decides if you’re affected by alcohol or drugs. You do not need to have a predetermined amount of alcohol in your blood such as .08 to be arrested and criminally charged. In fact, every month, we have cases charged in Kitsap District, Bremerton Municipal, Port Orchard Municipal, and Poulsbo Municipal courts that are below the .08 standard.
There Is No Automatic Dismissal!
Do not plan to show up to court and anticipate your case is “getting thrown out” once you point out a blow below .08 during your arraignment. It will not happen. These cases make money for the county and cities. Additionally, if an officer wrote in your reports that you were “affected by” a substance, that is sufficient for a judge or prosecutor. Unless you have video that establishes that the officer is lying and proves you were driving perfectly, the judge is going to find probable cause and you will be arraigned. Additionally, there may be further restrictions on your driving due to this reason.
Do Not Ignore Filing Your DOL Hearing Request!
Because people often get legal advice from friends who support non-legal theories for dismissal, the accused will, to their peril, wait to file the DOL hearing request. If summonsed, the defendant goes to court for arraignment well beyond the 7 day hearing limit and discovers they are facing a DUI criminal charge and now will have their license suspended regardless of whether they prevail on the criminal case. That is a bad situation to be in because, if you do not ignore the reality of low blow DUI arrests and had filed the DOL hearing request, your attorney could have successfully fought the DOL suspension due to a lack of jurisdiction on the low blow. In fact, most officers know they are not supposed to file the report with DOL on a DUI arrest below .08 but some officers still do it. Once that paperwork is filed, you must request the hearing if you want to avoid the suspension.
This information is an over-simplified explanation of these challenges. Do not use this as legal advice. To know what your risks and challenges are with an arrest below .08, you need an experienced criminal defense attorney in your area. It will make all the difference in your result. Do not take advice from non-lawyers or lawyers who do not practice law in your area.