DUI Defense Lawyer

Theory 1: Impairment (RCW 46.61.502(1)(a))

You drove or were in actual physical control of a vehicle while under the influence of intoxicating liquor or any drug to a degree that renders you incapable of safe driving.

This is the traditional DUI charge that focuses on actual impairment rather than blood alcohol numbers. Prosecutors prove impairment through:

• Officer's observations (driving pattern, odor of alcohol, bloodshot eyes, slurred speech, unsteady balance)
• Field sobriety test performance (walk-and-turn, one-leg stand, horizontal gaze nystagmus)
• Defendant's statements and behavior
• Accident or traffic violations preceding the stop

Theory 2: Per Se DUI (RCW 46.61.502(1)(b))

You drove or were in actual physical control of a vehicle while having a blood alcohol concentration of 0.08% or higher within two hours of driving.

This is called "per se" DUI because the BAC number alone proves the offense — the prosecution doesn't need to prove you were actually impaired or driving dangerously. If the breath or blood test shows 0.08% or above, you're guilty of DUI regardless of whether your driving was perfect and your behavior showed no signs of intoxication. The two-hour window recognizes that alcohol continues absorbing after you stop drinking, so your BAC may rise after you stop driving. However, this also creates the "rising BAC" defense.

Charged with Both

Prosecutors typically charge both theories in the same case. You can be convicted under either theory or both, though you can only be sentenced once (convictions merge for sentencing purposes). This dual charging strategy forces the defense to attack both the officer's observations/field sobriety tests and the scientific validity of the breath or blood test.

BAC 0.15% or Higher

If your breath or blood test shows BAC at or above 0.15% — nearly twice the legal limit — you face enhanced penalties:

• Doubled minimum jail time
• Increased fines
• Longer ignition interlock period (minimum 1 year becomes 18+ months)
• Longer license suspension

Breath Test Refusal

Refusing to take the breath test triggers enhanced penalties identical to high BAC cases, based on the theory that refusal indicates consciousness of guilt and BAC likely exceeded 0.15%. However, refusal also means the prosecution lacks scientific evidence of your BAC, which can make their case more difficult to prove.

Child in Vehicle (Under Age 16)

Having a passenger under sixteen years old in the vehicle while driving under the influence adds:

• Additional jail time
• Increased fines
• Child endangerment implications
• Potential CPS involvement (child protective services may investigate)
• Enhanced scrutiny from judges

Standard First DUI (BAC Under 0.15%, No Refusal)

Jail Time:

• Minimum: 1 day (24 hours or credit for time served at arrest)
• Maximum: 364 days
• Reality: Most first offenders serve 1-2 days with credit for time served

Fines & Costs:

• Minimum: $990.50 (includes base fine plus mandatory assessments)
• Maximum: $5,000
• Reality: Typically $1,200-$1,500 including court costs

License Suspension:

• DOL administrative suspension: 90 days
• Criminal court suspension: 90 days minimum (can run concurrent)
• Ignition Interlock License (IIL) available immediately (allows driving with interlock device)

Ignition Interlock Device (IID):

• Mandatory minimum: 1 year
• Must be installed on all vehicles you drive
• Cost: $75-$150/month ($900-$1,800 total for one year)
• Violations (failed test, circumventing device) reported to court and DOL

Treatment:

• Mandatory evaluation by state-certified agency ($150-$200)
• Alcohol Information School: 8 hours ($150-$200)
• DUI Victim Impact Panel: 4 hours
• Outpatient treatment (if recommended): $500-$2,000+

Probation:

Up to 5 years supervised or unsupervised. Conditions may include no driving without valid license/insurance/IID, no new criminal violations, complete treatment, and no alcohol consumption.

SR-22 Insurance:

Certificate of financial responsibility filed by your insurance company. Insurance rates increase dramatically (2-3x normal rates common). Required for 3 years.

Total Cost of First DUI:

• Attorney fees: $3,500-$7,500
• Fines and costs: $1,200-$1,500
• Ignition interlock: $900-$1,800 per year
• Treatment: $350-$2,500
• Increased insurance: $3,000-$6,000 over 3 years
• Total: $10,000-$20,000+ (not including lost wages, job loss, other impacts)

Enhanced First Offense (BAC 0.15%+ or Refusal)

• Jail: Minimum 2 days (48 hours actual custody)
• Fines: Minimum $1,245, maximum $5,000+
• License: DOL administrative suspension 1 year (refusal) or longer
• Interlock: Minimum 1 year (often 18 months to 2 years)

1. Horizontal Gaze Nystagmus (HGN)

Officer moves pen or finger horizontally and watches your eyes for involuntary jerking (nystagmus). Problems with HGN:

• Many medical conditions cause nystagmus (inner ear problems, certain medications, neurological conditions)
• Officer must be trained (many aren't properly certified)
• Lighting conditions affect test
• Contact lenses, glasses affect results
• Fatigue, caffeine can cause nystagmus

2. Walk-and-Turn

Walk nine steps heel-to-toe along straight line, turn in specific manner, return nine steps. Problems:

• Designed to fail — even sober people struggle
• Footwear affects performance (heels, boots, slippery shoes)
• Age, weight, physical fitness
• Medical conditions (knee problems, back problems, inner ear issues)
• Road surface (uneven, gravel, slope)
• Weather conditions (rain, wind, darkness)
• Nervousness about being arrested

3. One-Leg Stand

Stand on one foot, raise other foot 6 inches off ground, count aloud for 30 seconds. Problems:

• Extremely difficult even sober
• Age, weight, physical condition
• Balance issues, inner ear problems
• Surface conditions and footwear

You Are NOT Required to Perform Field Sobriety Tests

Field sobriety tests are voluntary. You can politely decline: "Officer, I respectfully decline to perform field sobriety tests. I'd like to speak with an attorney."

Why refuse:

• Tests are designed to produce evidence against you
• Even sober people fail
• Officer's mind often made up already
• Performance will be used against you regardless of outcome

Challenging FST Results

If you performed field sobriety tests, we challenge the results on multiple grounds:

• Improper administration: Officer didn't follow NHTSA standardized procedures, instructions unclear or rushed
• Environmental conditions: Uneven surface, poor lighting, traffic noise, weather
• Physical limitations: Medical conditions, age over 65, weight over 250 lbs, inappropriate footwear
• Officer bias: Made up mind before tests, interpreted performance as "failure" despite adequate performance

We obtain officer's training records, NHTSA manuals, and FST training videos, then cross-examine the officer at trial to show tests weren't administered properly or results don't support impairment.

How Breath Testing Works (BAC Datamaster in Washington)

Washington uses BAC Datamaster breath testing machines. The machine estimates blood alcohol concentration by measuring alcohol in your deep lung air and extrapolating to blood alcohol using a partition ratio. The science assumes:

• Partition ratio of 2100:1
• Breath sample comes from deep lungs (alveolar air)
• Normal body temperature
• No mouth alcohol present
• Normal lung function

When these assumptions are wrong, results are wrong.

Machine Calibration & Maintenance

Washington law requires breath test machines to be calibrated regularly (every 7 days), maintained according to manufacturer specifications, and tested with control samples.

We subpoena machine maintenance logs showing when the machine was last calibrated, whether it passed quality assurance tests, any malfunctions or errors, and repair history. If logs show problems, we move to suppress results.

15-Minute Observation Period (RCW 46.61.506)

The officer must observe you continuously for 15 minutes before a breath test to ensure you don't burp, regurgitate, vomit, eat, drink, or smoke. Mouth alcohol from any of these sources artificially inflates breath test results.

We challenge whether the officer actually observed you continuously — was the officer doing paperwork, on the phone, distracted, or processing multiple arrestees?

If 15-minute observation not done properly, breath test results suppressed.

Rising Blood Alcohol Defense

Alcohol absorbs into the bloodstream over 30-120 minutes after consumption. Your BAC rises during this absorption period, peaks, then falls. Example:

• 9:30 PM: Last drink consumed
• 10:00 PM: Stopped by police (BAC still rising — maybe 0.06%)
• 10:30 PM: Arrested, transported to station
• 11:00 PM: Breath test administered (BAC peaked — now 0.09%)

You were under 0.08% while driving (legal), but over 0.08% when tested. We hire toxicologists to create retrograde extrapolation showing your BAC was under 0.08% at time of driving.

Mouth Alcohol / GERD

Gastroesophageal reflux disease (GERD), acid reflux, and heartburn cause stomach contents (including alcohol) to come up into your mouth and throat. This creates mouth alcohol that the breath machine detects, inflating results.

We present medical records showing GERD diagnosis and expert testimony that results are unreliable. Dental work, dentures, and mouth jewelry can also trap alcohol in the mouth.

Blood Tests: Fourth Amendment Issues

Blood draws are more invasive than breath tests and implicate stronger constitutional protections. Police must obtain a search warrant for a blood draw (or valid consent). Missouri v. McNeely (2013) held that warrantless blood draws are unconstitutional except in true emergencies.

We challenge blood draws on multiple grounds:

• Lack of warrant or invalid warrant
• Involuntary consent (unconscious, coerced, not informed of right to refuse)
• Chain of custody (improperly stored, labeled, or transported)
• Lab analysis errors (procedures not followed, contamination, equipment malfunction)
• Fermentation (blood samples ferment over time if not properly preserved)

Fourth Amendment: Unlawful Traffic Stops

An officer must have "reasonable suspicion" of a traffic violation or criminal activity to justify stopping your vehicle.

Invalid reasons for a stop:

• "Hunch" or "gut feeling"
• Driving late at night in area known for DUI (not enough alone)
• Leaving bar or restaurant (not illegal; not reasonable suspicion)
• Matching vague description
• Pretextual stop (real reason is DUI suspicion, claimed reason is fabricated)

We obtain dash cam footage showing your driving before the stop. If driving was normal, we challenge whether the officer had reasonable suspicion. If the officer claims you committed a traffic violation, video often shows you didn't.

If stop was unlawful, everything suppressed — case dismissed.

Probable Cause for Arrest

Even if the stop was valid, the officer must have probable cause to arrest you for DUI. We challenge whether observations actually support probable cause:

• Odor of alcohol doesn't mean intoxication (one drink creates odor)
• Bloodshot eyes from fatigue, allergies, contacts, crying
• "Slurred speech" is subjective (nervousness, accent, speech impediment)
• Admitted "two beers" doesn't establish impairment
• Field sobriety tests are unreliable

If probable cause lacking, arrest was unlawful — breath test suppressed — case dismissed.

Miranda Rights

If the officer questions you in custody about details of the offense ("How much did you drink tonight?" "When did you start drinking?" "Where were you coming from?"), the officer must first advise you of Miranda rights.

If officer violated Miranda, your statements get suppressed — prosecution can't use them against you.

Not Driving

Defense arguments for physical control cases:

• Keys not accessible (in trunk, thrown outside vehicle, locked in glove box)
• Engine couldn't be started (dead battery, mechanical problem)
• You called for a ride (Uber on the way, friend coming)
• You were the passenger (driver fled scene; you moved to driver's seat after)

For actual driving cases: officer didn't see you driving, someone else was driving, insufficient evidence you were the driver.

Not Impaired / BAC Under 0.08%

• Officer's observations not reliable (subjective, exaggerated)
• Alternative explanations (fatigue, illness, nerves, medical conditions)
• Field sobriety test performance adequate (officer misinterpreted)
• Rising BAC (under 0.08% while driving; rose above after arrest)
• Breath test unreliable (mouth alcohol, GERD, machine error)

Medical Conditions Mimicking Intoxication

• Diabetes: Hypoglycemia causes confusion, slurred speech, poor coordination. Ketoacidosis produces acetone breath and can cause false positive on breath test.
• Neurological conditions: Inner ear disorders, brain injury, certain medications cause nystagmus and balance problems
• Fatigue: Exhaustion mimics intoxication (slurred speech, poor balance, slow reactions)
• Eye conditions: Allergies, contacts, dry eyes cause redness misinterpreted as "bloodshot eyes from alcohol"

We present medical records and expert testimony establishing alternative explanations for the officer's observations.

Absorbed Alcohol Defense

If you consumed alcohol immediately before driving, the alcohol may not have absorbed into your bloodstream yet. You may have been under 0.08% or not impaired while driving, but by the time of the test (30-40 minutes later), alcohol fully absorbed. Requires expert testimony from a toxicologist.

Reckless Driving (Most Common DUI Reduction)

Benefits of reckless driving over DUI:

• No DUI on record
• No mandatory minimum jail
• Shorter or no ignition interlock (judge's discretion; often waived or reduced to 6 months)
• Shorter license suspension
• No mandatory alcohol treatment
• Avoids some employment consequences (DUI specifically disqualifies CDL holders)

Prosecutors typically offer reckless when BAC is close to 0.08%, evidence of impairment is weak, or there are legal issues with the stop, arrest, or breath test.

Negligent Driving 1st Degree

A lesser reduction (misdemeanor, not gross misdemeanor) with lighter penalties:

• Misdemeanor (less serious than gross misdemeanor)
• Up to 90 days jail (though rarely imposed)
• Lower fines
• No ignition interlock
• Better for employment

Deferred Prosecution

Available when the offense was substantially caused by substance abuse or mental health disorder. Requirements:

• Petition court for deferred prosecution
• Undergo substance abuse or mental health evaluation
• No prior deferred prosecution (ever — one per lifetime)
• Complete 5-year treatment and monitoring program

Benefits: Guilty plea held in abeyance. Successful completion (5 years) results in charges dismissed. No jail time if you comply.

Risks: If you violate (drink, use drugs, get a new criminal charge, don't attend treatment), deferred prosecution is revoked and conviction is entered with sentencing on the original charge.

Best for: People with substance abuse disorders committed to sobriety, high BAC (0.15%+), or multiple DUIs facing mandatory jail otherwise. Not for social drinkers who made a one-time mistake.