Driving Under the Influence
**Laws change frequently, and each individual's situation is unique. Therefore, the following article is not intended as legal advice. To obtain particularized, up-to-date legal advice, please contact us.**
Driving While Under the Influence of Alcohol is a gross misdemeanor in Washington State, punishable by up to one year in jail and $5,000 in fines. In addition, you face revocation of your driver's license, mandatory installation of an ignition interlock device on all cars you drive, court-ordered alcohol evaluation and treatment, and doubled or tripled insurance rates. The severe criminal penalties and collateral consequences make DUI in many ways more serious than a felony prosecution.
DUI PENALTIES
There are two authorities which can impose penalties as a result of a citation for DUI. Washington State's Department of Licensing has the authority to suspend or revoke your license. The courts can order you to serve jail time and pay fines, and can also order DOL to revoke your driver's license. Separate hearings are held before the Department of Licensing and the courts to determine these penalties.
In the criminal proceeding, you will eventually have to plead guilty or not guilty to the charge. If you plead guilty you will be immediately sentenced. If you plead not guilty, you have the right to contest the matter at a trial. If at the end of that trial the judge or the jury finds you guilty, you will then be sentenced. The severity of the sentence depends upon your level of intoxication and your criminal history.
I. COURT-IMPOSED PENALTIES
A. MINIMUM PENALTIES
1. First DUI Offense (in 7 years):
2. Second DUI Offense (in 7 years):
3. Third DUI Offense (in 7 years):
MAXIMUM PENALTIES: The foregoing sets forth the minimum jail sentence and monetary fine. Upon any DUI conviction, a judge may impose up to 365 days in jail and a $8,685 fine. Usually, a substantial jail sentence is imposed, with all but the mandatory minimum suspended during a probationary period that may be as long as five years. The suspended jail time may be imposed at a later date if the defendant fails to comply with the sentence during the period of probation.
If you have a license from another state, your home state will be notified of the conviction and take action. For example, Idaho residents who are convicted of a DUI in Washington ultimately have their Idaho license suspended for six months. Oregon has a similar provision.
a. Breath
test less than .15: 1 day jail*, $800 in fines, full license
privileges suspended 90 days, mandatory ignition interlock for duration
of license suspension plus one year.
b. Breath test of .15 or higher, or refused to take test: 2 days jail*, $1,060 in fines; if breath test of .15 or higher, then full license privileges suspended for one year; if breath test refusal, then full license privileges suspended for two years; mandatory ignition interlock for duration of license suspension plus one year.
*In lieu of jail, one may chose home detention with electronic monitoring. This allows school or work release privileges. 1 day jail = 15 days home detention. Home detention costs $15 to $20 a day. To qualify for EHM, you must demonstrate that serving a day in jail would impose a substantial risk to your physical or mental well-being.
b. Breath test of .15 or higher, or refused to take test: 2 days jail*, $1,060 in fines; if breath test of .15 or higher, then full license privileges suspended for one year; if breath test refusal, then full license privileges suspended for two years; mandatory ignition interlock for duration of license suspension plus one year.
*In lieu of jail, one may chose home detention with electronic monitoring. This allows school or work release privileges. 1 day jail = 15 days home detention. Home detention costs $15 to $20 a day. To qualify for EHM, you must demonstrate that serving a day in jail would impose a substantial risk to your physical or mental well-being.
2. Second DUI Offense (in 7 years):
a. Breath
test less than .15: 30 days jail, 60 days electronic home
monitoring, $1,060 in fines, full license privileges suspended for two
years, mandatory ignition interlock for duration of license suspension
plus five years.
b. Breath test of .15 or higher, or refused to take test: 45 days jail, 90 days electronic home monitoring, $1,485 in fines, full license privileges suspended for 900 days (three years if there was a breath test refusal), mandatory ignition interlock for duration of license suspension plus five years.
b. Breath test of .15 or higher, or refused to take test: 45 days jail, 90 days electronic home monitoring, $1,485 in fines, full license privileges suspended for 900 days (three years if there was a breath test refusal), mandatory ignition interlock for duration of license suspension plus five years.
3. Third DUI Offense (in 7 years):
a. Breath
test less than .15: 90 days jail, 120 days electronic home
monitoring, $1,910 in fines, full license privileges suspended for
three years, mandatory ignition interlock for duration of suspension
plus ten years.
b. Breath test of .15 or higher, or refused to take test: 120 days jail, 150 days electronic home detention, $2,760 in fines, full license privileges suspended for four years, mandatory ignition interlock for duration of suspension plus ten years.
b. Breath test of .15 or higher, or refused to take test: 120 days jail, 150 days electronic home detention, $2,760 in fines, full license privileges suspended for four years, mandatory ignition interlock for duration of suspension plus ten years.
MAXIMUM PENALTIES: The foregoing sets forth the minimum jail sentence and monetary fine. Upon any DUI conviction, a judge may impose up to 365 days in jail and a $8,685 fine. Usually, a substantial jail sentence is imposed, with all but the mandatory minimum suspended during a probationary period that may be as long as five years. The suspended jail time may be imposed at a later date if the defendant fails to comply with the sentence during the period of probation.
If you have a license from another state, your home state will be notified of the conviction and take action. For example, Idaho residents who are convicted of a DUI in Washington ultimately have their Idaho license suspended for six months. Oregon has a similar provision.
B. ADDITIONAL COURT-IMPOSED PENALTIES
1. Probation:
A period of probation must be imposed, up to five years in length, if
the Court suspends any portion of the maximum sentence. The
Whitman County District Court routinely orders probation supervision
fees in the amount of $50 per month.
2. Vehicle Forfeiture: Upon conviction of DUI or physical control of a person who has a prior DUI, physical control, deferred prosecution, negligent driving in the first degree, or other alcohol-related driving conviction, the vehicle being driven at the time of the crime may be seized by the government and forfeited.
3. Alcohol Evaluation and/or Treatment: All persons convicted of DUI are required to obtain an alcohol evaluation. The cost of an alcohol evaluation varies depending on income level, and can cost as much as $115. If that evaluation determines that you have an alcohol problem, you will be required to undergo treatment which could be either a one- or two-year program.
If the evaluation determines that you do not have an alcohol problem you will nevertheless be required to attend what is called Alcohol Information School (AIS). AIS consists of 12 hours of class work spread over three days. The physiological effects of alcohol are explained to encourage temperate drinking. The usual cost of AIS is $100.
4. Ignition Interlock Driver’s License: As discussed more fully below, if you are convicted of DUI, the court will order you to apply for an Ignition Interlock Driver’s License. If you are granted the IIDL you will bear the costs for the entire period you are required to maintain the ignition interlock device.
5. Visiting Canada: If you are convicted of DUI, you will not be able to enter Canada, in all likelihood, for a period of ten years. See Visiting Canada With A Criminal Record.
a.
Probation Violation: If you violate the terms of probation (for
example, by driving while your license is suspended), the court must
impose 30 days jail time. You also face an additional 30-day
license suspension, plus whatever penalty is imposed as a result of
conviction for the new crime. (For example, an arrest for DUI could
result in both a probation violation and a conviction of DUI.)
2. Vehicle Forfeiture: Upon conviction of DUI or physical control of a person who has a prior DUI, physical control, deferred prosecution, negligent driving in the first degree, or other alcohol-related driving conviction, the vehicle being driven at the time of the crime may be seized by the government and forfeited.
3. Alcohol Evaluation and/or Treatment: All persons convicted of DUI are required to obtain an alcohol evaluation. The cost of an alcohol evaluation varies depending on income level, and can cost as much as $115. If that evaluation determines that you have an alcohol problem, you will be required to undergo treatment which could be either a one- or two-year program.
If the evaluation determines that you do not have an alcohol problem you will nevertheless be required to attend what is called Alcohol Information School (AIS). AIS consists of 12 hours of class work spread over three days. The physiological effects of alcohol are explained to encourage temperate drinking. The usual cost of AIS is $100.
4. Ignition Interlock Driver’s License: As discussed more fully below, if you are convicted of DUI, the court will order you to apply for an Ignition Interlock Driver’s License. If you are granted the IIDL you will bear the costs for the entire period you are required to maintain the ignition interlock device.
5. Visiting Canada: If you are convicted of DUI, you will not be able to enter Canada, in all likelihood, for a period of ten years. See Visiting Canada With A Criminal Record.
II. DOL-IMPOSED PENALTIES
A. LICENSE SUSPENSION PERIODS
Any
person arrested for DUI or physical control who submits a breath test
with an alcohol concentration of .08 or higher, will be served with a
notice of intent to suspend or revoke his license. The length of
suspension or revocation depends on the driver’s record.
(Additional provisions apply to those under 21, which are discussed
below.) The Department of Licensing can suspend or revoke your
license regardless of whether you are convicted of DUI. DOL can
impose the following license suspensions:
- 1st DUI in seven years: 90-day suspension
- 2nd-or-Subsequent DUI in seven years: Two-year suspension (or until age 21 for a minor, whichever is longer)
- 1st Breath Test Refusal in seven years: One-year suspension
- 2nd-or-Subsequent Breath Test Refusal in seven years: Two-year license suspension (or until 21 for a minor, whichever is longer)
Entry
into a deferred prosecution program – discussed below – will avoid a
license suspension, but is a huge personal and financial
commitment.
B. IGNITION INTERLOCK DRIVER’S LICENSE
Effective
January 1, 2009, if you are arrested for DUI you will likely be able to
continue to drive during the period when your license would otherwise
be revoked or suspended by applying for an Ignition Interlock Driver’s
License (IIDL).
You may apply for an IIDL prior to or after having your license revoked. The IIDL requires you to maintain a functioning ignition interlock device on all vehicles that you drive. You do not need to have an IID on vehicles provided by your employer, provided the employer supplies a declaration stating that you are required to operate the vehicle during work hours. Although you would be able to drive with an IIDL during the period of suspension of your regular driver’s license, other penalties, including jail time and fines, would still apply. If you receive an IIDL in lieu of suspension, you must pay for the costs of installation and removal of the ignition interlock device, as well as a monthly fee while the device is being used.
You are entitled to have a hearing with DOL to contest the suspension of your license. Unfortunately, if you receive an IIDL prior to the DOL Hearing, then you would waive the right to have that hearing. However, you would not lose any rights in the criminal proceeding.
If you are convicted of DUI, the court will order you to apply for an IIDL. You will bear the costs of installing and leasing the ignition interlock device.
You may apply for an IIDL prior to or after having your license revoked. The IIDL requires you to maintain a functioning ignition interlock device on all vehicles that you drive. You do not need to have an IID on vehicles provided by your employer, provided the employer supplies a declaration stating that you are required to operate the vehicle during work hours. Although you would be able to drive with an IIDL during the period of suspension of your regular driver’s license, other penalties, including jail time and fines, would still apply. If you receive an IIDL in lieu of suspension, you must pay for the costs of installation and removal of the ignition interlock device, as well as a monthly fee while the device is being used.
You are entitled to have a hearing with DOL to contest the suspension of your license. Unfortunately, if you receive an IIDL prior to the DOL Hearing, then you would waive the right to have that hearing. However, you would not lose any rights in the criminal proceeding.
If you are convicted of DUI, the court will order you to apply for an IIDL. You will bear the costs of installing and leasing the ignition interlock device.
C. TIMING OF LICENSE SUSPENSION
The
license suspension initiated by DOL commences 60 days after
arrest. If you request a hearing with DOL to contest your license
suspension, the suspension will not go into effect until the hearing
officer makes a ruling. You must request a hearing with DOL
within 20 days of arrest or you waive your right to have the
hearing.
Administrative license suspensions and court-imposed license suspensions run concurrently. For example, if the court orders a 90-day suspension and the Department of Licensing orders a 90-day license suspension, the total period of suspension will not exceed 90 days.
Administrative license suspensions and court-imposed license suspensions run concurrently. For example, if the court orders a 90-day suspension and the Department of Licensing orders a 90-day license suspension, the total period of suspension will not exceed 90 days.
III. DEFERRED PROSECUTION
In view of the ever-increasing penalties for DUI and Whitman County's limited plea bargain policy, serious consideration should be given to the deferred prosecution program. If convicted of DUI, recall that you will be required to obtain an alcohol evaluation and comply with whatever treatment is recommended. If the evaluation concludes that you are an alcoholic or a substance addict (which terms cover a broad range of problems) you will be required to complete a two-year treatment program.
If a person obtains an evaluation before entering a plea and if the evaluation recommends this two-year program, a person may enter into the treatment program. If a person successfully completes a two-year program, and does not have further arrests for a period of five years, he or she is not convicted and avoids all penalties. You certainly do not want to be in the situation of having to complete a two-year treatment program plus incur the penalties of a conviction. If the treatment is going to be required, you should agree to do it “up front” and avoid the conviction.
The treatment program is very strenuous. It involves attendance at an Alcoholics Anonymous meeting two times a week for two years, coupled with intensive inpatient treatment or, more likely, intensive outpatient treatment. For example, the typical program involves an eight week period during which you attend classes three nights a week for three hours a night, followed by a 26-week period of once-a-week classes of 1½ hours per night, followed by one counseling session per month for the remainder of the two years.
A person who successfully completes the deferred prosecution program is not convicted and therefore avoids all the penalties which a conviction would cause: no jail, license suspension, fine or criminal record. The charge is dismissed five years after you begin the treatment program, i.e., three years after you complete treatment. It is likely that a deferred prosecution will not impact insurance rates the way a conviction would.
A deferred prosecution program is time-consuming and strict compliance is required. The costs vary depending on your treatment provider - they typically run about $2,700.00 over the two years. Most health care insurance policies provide coverage for a substantial portion of the cost.
If you decide to seek a deferred prosecution, we will assist you in obtaining an alcohol evaluation from an approved agency. If the evaluation concludes that you suffer from alcoholism or substance addiction and will benefit from treatment, we prepare a formal petition and go to court with you to seek approval from the judge. Prior to this, you would fill out a document entitled Statement of Defendant which goes into great detail concerning the legal consequences of a deferred prosecution. In essence, you would agree that if you do not fulfill the terms of the program, you will be brought back to court and found guilty.
Because the Department of Licensing will automatically suspend your license 60 days after your arrest, absent a successful administrative hearing, it is important that you obtain the alcohol evaluation and that we obtain the order deferring prosecution from the Court within that 60-day period. The deferred prosecution eliminates the license suspension. However, as a condition of granting an alcohol-related deferred prosecution, the court must order installation of an ignition interlock device.
The penalties if you are convicted of DUI after being revoked from the deferred prosecution program are normally substantially greater than if you had pleaded guilty in the first place. So, you should not enter into this program without being seriously committed to it.
IV. LEGAL CONSIDERATIONS
A. COURT PROCEDURE
If
you are charged with DUI, you will be ordered to appear in court
personally within 24 hours of the arrest (by the end of the next week
day). If you are charged only with other offenses, your attorney
can appear for you.
At your first appearance, the judge will explain the basic penalties, your legal rights and ask you how you plead. If you plead guilty you will be immediately sentenced. If you plead not guilty, the judge will schedule a pre-trial conference and a trial at a later date.
A trial date must occur within 90 days of the plea.
Continuance: If the trial date scheduled is inconvenient for you or any witnesses, it is possible to have the case continued to a more convenient time.
Jury/Non Jury: You have a right to decide whether your case should be tried by a jury or not. If you decide on a jury, it will be six in number. If you do not have a jury, the judge decides your guilt or innocence.
At your first appearance, the judge will explain the basic penalties, your legal rights and ask you how you plead. If you plead guilty you will be immediately sentenced. If you plead not guilty, the judge will schedule a pre-trial conference and a trial at a later date.
A trial date must occur within 90 days of the plea.
Continuance: If the trial date scheduled is inconvenient for you or any witnesses, it is possible to have the case continued to a more convenient time.
Jury/Non Jury: You have a right to decide whether your case should be tried by a jury or not. If you decide on a jury, it will be six in number. If you do not have a jury, the judge decides your guilt or innocence.
B. LEGAL RIGHTS
DUI
is a crime and therefore you have all the rights that a person charged
with any crime has. Your are presumed innocent--the burden is on
the prosecution to prove beyond a reasonable doubt that you are
guilty. The officer must actually come to court and tell his
story under oath, at which time he will be cross-examined.
You may have witnesses testify on your behalf.
You have the right to remain silent - that is, the prosecution may not force you to testify. As a practical matter it is very unlikely that a successful outcome can be obtained without your testimony. If you do testify, you must tell the truth. To do otherwise would be a very serious crime of perjury.
You have the right to represent yourself. If you do not wish to do so, you have the right to be represented by an attorney. That is an expense you must bear unless you are indigent. In that situation, the court may appoint an attorney to represent you but if you are ultimately convicted, a condition of your sentence would be to reimburse the county for the costs of your court-appointed lawyer.
You may have witnesses testify on your behalf.
You have the right to remain silent - that is, the prosecution may not force you to testify. As a practical matter it is very unlikely that a successful outcome can be obtained without your testimony. If you do testify, you must tell the truth. To do otherwise would be a very serious crime of perjury.
You have the right to represent yourself. If you do not wish to do so, you have the right to be represented by an attorney. That is an expense you must bear unless you are indigent. In that situation, the court may appoint an attorney to represent you but if you are ultimately convicted, a condition of your sentence would be to reimburse the county for the costs of your court-appointed lawyer.
C. WHAT MUST THE PROSECUTION PROVE?
In
order to convict you of DUI or physical control the prosecution must
prove beyond a reasonable doubt one of two things: (1) that you either
were driving or in physical control of a motor vehicle at a time your
ability to drive was affected to an appreciable degree because you had
consumed intoxicating liquor and/or drugs; or (2) that within two hours
of driving or physical control your breath or blood alcohol level was
.08 or more.
The prosecution must prove beyond a reasonable doubt that the test was administered accurately and that the results obtained were accurate. There are guidelines showing what blood alcohol levels should be, based upon one's weight and the number of drinks consumed. There are methods available to discredit the breath test if the results obtained simply do not reconcile with the facts of your drinking. Nevertheless, the test results are quite reliable and usually accepted as accurate.
The prosecution must prove beyond a reasonable doubt that the test was administered accurately and that the results obtained were accurate. There are guidelines showing what blood alcohol levels should be, based upon one's weight and the number of drinks consumed. There are methods available to discredit the breath test if the results obtained simply do not reconcile with the facts of your drinking. Nevertheless, the test results are quite reliable and usually accepted as accurate.
