It’s an all to common story, “I blew into the breathalyzer machine as instructed by law enforcement and my BAC (Blood Alcohol Concentration) result was under the legal limit of .08, and I was arrested for DUI. I blew under the legal limit of .08, and now I am charged with DUI. What!?”
It’s unfair but true. In Washington State you can still be charged with DUI (Driving Under the Influence) while having a DUI breath test result under the legal limit of .08.
The Revised Code of Washington (RCW) 46.61.502 defines a driver as being guilty of DUI if the person drives a vehicle within this state “while under the influence of or affected by intoxicating liquor..” Affected by intoxicating liquor!? What does this mean? It means the law enforcement officer that is investigating a person for driving drunk may use their discretion to decide if that person’s driving was affected by alcohol at any BAC level and if they decide their driving was affected then they may arrest that person for DUI. The reasoning behind this is; every person reacts differently to alcohol and less amounts may “affect” a person’s ability to drive even while having a test result under the DUI limits.
Unfortunately, a person charged with DUI with a breath test under the legal limit will still face the same penalties of a person with a breath test ranging from .08 to .15 with all other factors being similar. Thus, a DUI charge with a breath test under the legal limit should be taken just as seriously as a DUI case with a breath test above the legal limit.
In my personal and professional opinion I don’t believe any driver should be charged with DUI if that person blew under the legal limit, unless something extraordinary happened; such as a car accident etc. It’s very misleading when Washington State advertises that drinking and driving is illegal if your BAC is .08 or above. The State should be more responsible and honest about drunk driving and change their advertising. The State should properly inform everyone that they could be charged with DUI at any BAC level if they drove after consuming any alcohol and their driving was affected.
I have represented several people charged with DUI while blowing under the legal limit. Fortunately for those clients we were able to resolve all those cases very well!