FAQs
Contact us with questions 206.382.9200
Q: Will I go to jail?
The crime of DUI is a gross misdemeanor, which means that if there is a conviction the judge will have the authority to impose a maximum punishment of one year in jail and a five thousand dollar fine. A conviction can happen when a jury issues a verdict of guilty after a jury trial or when a judge enters a finding of guilty after a plea of guilty or a bench trial. If there is a conviction, then the judge must impose a mandatory minimum sentence of one day in jail for a first offender. If the first offender provided a breath sample over a .15 or refused the test, then the mandatory minimum is two days in jail. A second conviction within seven years carries a thirty day and forty-five day mandatory minimum, again depending on the breath sample level or refusal. The most important thing to remember is that the prosecutor has to prove their case before any jail sentence can be imposed. There is no other area in law which carries such a high burden as proof beyond a reasonable doubt.
Q: Is my license suspended?
No, your license is in a temporary status. You may legally drive if you were stopped and arrested for a DUI and the officer punched your license. He/she was required to provide to you an advisement that you have twenty days to request a hearing from the Department of Licensing. (The request for a hearing must be postmarked within twenty days after receipt of the advisement, but speak with a lawyer first). At the bottom of the advisement you were provided is a strip which should be cut off and wrapped around your license. This strip actually is your temporary license. The temporary license is valid for sixty days and may be extended for up to one-hundred-and-fifty days.
For the State to suspend or revoke your license, you must either be convicted of a DUI in a criminal court or the suspension must be upheld by the Department of Licensing. Technically, the moment the officer punches your license, it was suspended and automatically put into a temporary status for sixty days. If you fail to request a hearing, then the DOL will simply uphold the suspension, which will begin on the sixtieth day and last for at least ninety days depending on the breath sample level, refusal, and number of administrative actions within the prior seven year period.
Q: What is a DUI?
DUI stands for Driving Under the Influence. When you are arrested for the crime of DUI, the State files two cases against you: a criminal case and a civil case. The criminal case is filed by the prosecutor in district or municipal court and is a gross misdemeanor, which means the maximum punishment is one year in jail and a five thousand dollar fine. The civil case is filed by the Department of Licensing. Both cases involve a possible license suspension for at least ninety days. The prosecutor will allege two different means of committing the crime of DUI: blowing over the legal limit of .08 within two hours of driving and driving while “affected” by drugs or alcohol.
Q: Will I be able to drive to work if my license is suspended?
You will be able to drive to work when your license is suspended if you successfully apply for and are provided an Ignition Interlock License (IIL) or an Occupational Restricted License (also called a Temporary Restricted License).
Ignition Interlock LIcense
You are immediately eligible to apply for an IIL after a DUI suspension is imposed. You have to obtain an ignition interlock device (IID), have proof of high risk insurance (SR-22), pay $100 application, properly fill out an application and pay an additional $20/month to help fund indigent citizens for the remainder of your suspension. Additionally, if you are required to drive employer owned vehicles, in order to waive the requirement to install an ignition interlock device on all vehicles driven, you will need to have your employer sign the Employer Declaration for Ignition Interlock Waiver.
For more information regarding the Ignition Interlock License please read the article “The Ignition Interlock License,” by Geoffrey Burg.
Occupational Restricted LIcense
You are not eligible for an ORL after a DUI suspension is imposed until after thirty days have passed (on a 90 day suspension), you have proof of high risk insurance (SR-22), you pay $100, you properly fill out an application including having your employer sign off on it, and you had a valid license at the time of the suspension and no convictions for vehicular homicide or vehicular assault within seven years, The trick is getting the DOL to process your ORL in time so that you receive it by the time the thirty day no drive period is over. The waiting or no driving period is ninety days for a one year suspension/revocation and one year for a two year suspension or revocation.
The ORL will allow you to drive only for employment, undergoing continuing healthcare or providing continuing care to another person who is dependent on you, enrolled in an educational institution and pursuing a course of study leading to a diploma, degree or other certification, court-ordered community service, work First, apprenticeship, or on-the-job training, attending substance abuse treatment, or 12-step meetings (unless transit service is available).
The ORL will not be allowed if your current suspension involved habitual traffic offender (HTO), minor in possession (MIP), failure to pay child support , vehicular assault or vehicular homicide Intermediate License restriction violations or too many Rules of the Road violations while holding an Intermediate License, fraud, driver license not surrendered when required, violation of court probation, violation of ORL restrictions, canceled SR-22 Insurance, failure to qualify on a medical or visual examination, failure to qualify on a driver skills examination or failure to undergo required alcohol/chemical dependency treatment.
Q: Can I remove a DUI Conviction from my record?
The answer is no. The vacation statute in the State of Washington specifically excludes removing DUI and physical control charges from your record. Vacation is the process which allows one to say that he/she has never been convicted of a crime even though he/she was. Amazingly, you can clear many felonies off your record but not a DUI. DUI’s are singled out with class A felonies and sex offenses as specifically excluded from the statute.
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Q: Should I have taken the Field Sobriety Tests?
The law does not require that you submit to any field sobriety tests.
Washington Appellate courts have consistently said that field sobriety tests can not be compelled, and for their results to be admissible at trial they must be voluntary and not the result of coercion. However, one Appellate court has said that the refusal of an individual to perform to voluntarily perform field sobriety tests could be admissible at trial.
Although having performed the Field Sobriety Tests could provide the prosecution powerful evidence to use against you, hindsight always has 20/20 vision. I believe that a driver should politely decline to perform any field sobriety tests by stating, “My lawyer has advised me not to perform any field tests.” If the officer advises you that your failure to perform a test will result in the suspension of your license, immediately ask to speak with an attorney.
Q: Should I have given a breath sample in the portable breath tester the officer had in the field?
The WA administrative code defines the portable breath testing device as a screening tool to assist the officer in determining the existence of probable cause to arrest a driver suspected of driving under the influence. As with the performance of field sobriety tests, the officer may not compel a driver to provide a breath sample for analysis by a PBT device in the field. Failure to provide this voluntary, pre-arrest sample can not be used as a basis for an administrative license suspension by the Department of Licensing.
Q: Should I have given a breath sample in the BAC DataMaster at the police precinct?
WA law provides as a condition of the Washington state driver’s license, the individual has given his “implied consent” upon the valid arrests for driving under the influence or physical control of a motor vehicle under the influence, thus the driver will provide to valid samples of his breath for analysis. The law provides that the driver withdraw that consent, but then the driver is subject to revocation of driving privilege for at least one year.
The results of the breath test may produce damaging evidence to be used at trial. The refusal to submit to a breath test may provide more damaging evidence at trial, as well as subjecting the driver to enhanced penalties if convicted.
Unfortunately many drivers erroneously believe the urban myth that without breath test results it is impossible to be convicted of DUI. In most circumstances, submitting to the “legal breath test” after the invocation of the implied consent provisions by the officer is probably the “right” answer.
Q: Do I have to install an Ignition Interlock Device or IID in my car?
Not every one charged with the DUI will be required to install an ignition interlock device. The ignition interlock may be required as a result of the granting of a petition for deferred prosecution, a conviction with enhanced penalties associated with a BAC level over 0.15 or the finding that the driver refused to provide a sample, or for multiple convictions within a seven year period. Additionally, the Department of Licensing may require an ignition interlock device be installed as a result of an administrative license action.
Q : What are my chances of beating this charge?
Until an experienced DUI attorney can evaluate all the information and reports in your case, be wary of attorneys promising guaranteed results. There is no way to accurately predict your chances of “beating” a charge of DUI. Failing to consult an experienced DUI attorney is a risk not worth taking!
The only thing that can be guaranteed is that if you walk into court and plead guilty without consulting an experienced DUI attorney, you lose!
An accurate evaluation of the likely outcome of your case involves not only the facts of the individual case and the applicable law, but also consideration of the interaction of the DUI attorney, the prosecutor, and the judge assigned to the case.