Defense lawyers in eastern Washington are seeing more and more people charged with DUI with breath alcohol levels of under .08.   Under Washington law, a prosecutor can convict on a DUI if a person is over .08, or if the individual is “affected” by the alcohol.  This second option is referred to in court as the “affected by” prong, and defendants are usually pretty surprised to learn the law on this subject.

In rural areas such as Lincoln county, Stevens county, or Adams county, DUI arrests are in rural locations with few witnesses present.

For years this second prong was largely ignored by prosecutors, meaning if a prosecutor didn’t have a breath test or blood test result of over .08, no charges would be filed.

Legal Strategies on DUI Charges < .08

The strategy a defense lawyer uses on a DUI under .08 can be dramatically different than other DUI’s.

Traditionally, a defense lawyer will fight tooth and nail to try to exclude the breath or blood test, or to try to get the test results “thrown out of court.” However, if a defendant has an alcohol level of under .08, it will often be the defense lawyer who will fight to have the results admitted.  In the perception of some jurors, a test result under .08 means the defendant “passed” the test. When a prosecutor takes a DUI to trial and the BAC (blood alcohol content) is under .08, he or she usually will attempt to prove that the defendant is “affected” by the alcohol by showing that the defendant did not do very well on the roadside filed sobriety tests.  But as you can imagine, these sort of test are highly subjective.  In my practice as a defense lawyer, I often will request a copy of any video showing the defendant on the night in question.  Usually the defendant will be shown to be in far better shape than the police officer might suggest. Many jails will have video recordings of the defendant when he or she was booked or when he or she took the breathalyzer or breath test.  It is important to have an attorney request this video right away because usually the jails will record over it within a matter of days if it is not preserved.  Even if the arrest is made by the State Patrol, it is the local county or city that keeps the video. Some police stations (such as the Grand Coulee police department in Grant county) do not have video in the BAC room.  Other sources of video evidence is any video camera the officer might have in his or her car, and sometimes officers will wear a “body cam“.  In more metropolitan areas like Spokane, security camera video footage might exist from nearby businesses.  This is less common on the rural roads of Stevens or Lincoln county, but even towns like Colville or Davenport have businesses with security systems monitoring their parking lots.  If a defendant is truly intoxicated, such evidence can be very incriminating because it will show the person staggering or loosing his or her balance. However, in cases with low alcohol levels, such video footage is crucial to the defense.

Strategies Prosecuting Attorneys Use

When a defendant has a breath test under .08, the prosecuting attorney will sometimes argue that the defendant’s alcohol level was actually higher at the time of the traffic stop.  A human body will burn off .015 alcohol per hour on average.  So if a defendant is stopped at 9 p.m. and blows .070, the prosecutor will argue that he or she was actually .085 at the time of the stop at 10 p.m.  Sometimes in DUI trials, the prosecutor will call toxicology experts from the state lab to come testify on this subject.  In large rural counties such as Lincoln County, Adams County, of Grant County a defendant might have considerable travel time to get to a breath instrument.  However, it is possible that a person got behind the wheel and was stopped prior to full absorption of any alcohol consumed.  Usually all alcohol will be absorbed between 2 and 20 minutes after drinking.  More urban counties such as Spokane might have more than one breath test instrument, but in rural counties such as Lincoln County, Adams County, or Grant County, the police have fewer options.

The transport time from arrest to a jail-house breath test can be substantial in rural areas such as Lincoln County, Okanogan County, and Grant County.

There are breath test instruments in the county seats of Davenport, Ephrata, and Ritzville, WA, and sometimes in the smaller cities.  Some counties, such as Okanogan County, have breath instruments at the Tribal jails on the local Indian reservation.  These instrument are located on sovereign land, but are still owned and maintained by the WSP and Toxicology lab.  In Grant County, Washington, there is also a mobile BAC unit.

PBT Tests in DUI Cases

When the police stop a person for DUI or DWI, they will usually ask a suspect to blow into a portable breath test or PBT.  These PBT’s are not very accurate, and the results are not admissible at the jury trial.  When the police stop someone they will usually either arrest someone or let them drive off.  This can be a hard decision for the police.  If they improperly allow someone impaired drive off, they could face a lawsuit.  However, if they arrest improperly, they could also face a suit.  As a criminal defense lawyer, I worry that fears of false-arrest lawsuits might motivate the police to exaggerate a suspect’s intoxication.  In decades prior, police may have simply given the defendant a ride home if they were not sure of their impairment, but those days have come and gone in eastern Washington.

In DUI cases involving alcohol levels under .08, prosecuting attorneys will usually be quick to make plea offers of reduced charges down to negligent driving first degree.  However, such a plea deal will count as a prior alcohol related offense in case someone ever gets into trouble again.  Convictions for Negligent Driving First Degree can also make entry into Canada difficult, and can affect a commercial driver’s license.  Under a new law that went into action September 1st, the Department of Licensing may require ignition interlock devices for Negligent Driving or Reckless Driving under certain circumstances.

For more information about DUI, see here.

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