RCW 46.61.502, Driving Under the Influence
RCW 46.61.502 prohibits driving a vehicle in Washington while under the influence of intoxicating liquor, cannabis, or a drug. The State may proceed under one of four statutory alternatives:
RCW 46.61.502, Driving Under the Influence
RCW 46.61.502 prohibits driving a vehicle in Washington while under the influence of intoxicating liquor, cannabis, or a drug. The State may proceed under one of four statutory alternatives:
1. An alcohol concentration of 0.08 or higher within two hours after driving.
2. A THC concentration of 5.00 or higher within two hours after driving.
3. Being under the influence of, or affected by, intoxicating liquor, cannabis, or a drug while driving.
4. Being under the combined influence of, or affected by, intoxicating liquor, cannabis, and a drug while driving.
The State must prove that a person drove a vehicle within Washington and that at least one of the statutory alternatives was satisfied.
When multiple statutory alternatives are charged, the charging document must contain the essential elements of the charged alternatives, and the evidence must support the alternative on which the conviction is based. State v. Shabel, 95 Wn. App. 469, 976 P.2d 153 (1999). Washington Pattern Jury Instruction 92.02 outlines the elements of the crime of DUI or driving under the influence.
Per Se and Affected-By DUIs
PER SE DUIS
A per se DUI relies on a qualifying alcohol concentration .08 or higher or THC concentration 5.00 nanograms per milliliter of blood within two hours after driving. RCW 46.61.506 explains the alcohol or THC concentration issues in further detail.
The “affected by” alternative rely on evidence that the defendant’s ability to handle or drive the vehicle was lessened in an appreciable degree by intoxicants. State v. Hurd, 5 Wn.2d 308, 315, 105 P.2d 59 (1940); State v. Hansen, 15 Wn. App. 95, 546 P.2d 1242 (1976); State v. Wilhelm, 78 Wn. App. 188, 896 P.2d 105 (1995).
The State does not necessarily need a chemical test to prove an affected-by DUI. Circumstantial evidence, including driving behavior, physical appearance, speech, balance, odor of alcohol, and field sobriety performance, may support the charge. State v. Woolbright, 57 Wn. App. 697, 701, 789 P.2d 815 (1990).
AFFECTED-BY DUIS
Yes, when the State relies on the per se alcohol or THC alternative, the prosecution must establish that the breath or blood test was accurate and reliable beyond a reasonable doubt. WPIC 92.16 addresses challenges to blood and breath test results.
The admissibility of a blood test may also depend on compliance with the statutory and regulatory procedures governing collection, preservation, and analysis. State v. Hultenschmidt, 125 Wn. App. 259, 102 P.3d 192 (2004).
Yes. RCW 46.61.502(4) permits certain blood or breath analyses obtained more than two hours after driving to be used as evidence concerning the alcohol or THC concentration within the two-hour period.
RCW 46.61.502(3) recognizes an affirmative defense when the defendant consumed enough alcohol or cannabis after driving, but before testing, to cause the qualifying concentration within two hours after driving. The statute requires advance notice of the defense before the omnibus or pretrial hearing.
The defendant, or accused, must prove the post-driving consumption by a preponderance of the evidence. However, Washington authority and WPIC 92.14 treat the defense similarly to self-defense, placing the burden on the prosecution to disprove it beyond a reasonable doubt once the defense has been sufficiently raised. State v. Robbins, 138 Wn.2d 486, 496–97, 980 P.2d 725 (1999).
RCW 46.61.502 expressly provides that being legally entitled to use marijuana, cannabis, or another drug is not a defense to the charge.
DUI is treated as a strict-liability offense, meaning the State ordinarily does not have to prove a culpable mental state. In a prescription-drug case, however, lack of knowledge about the drug’s intoxicating effects may be available as an affirmative defense. State v. Dailey, 174 Wn. App. 810, 300 P.3d 834 (2013).
The safely-off-the-roadway defense applies to physical control under RCW 46.61.504, not to driving under the influence under RCW 46.61.502. State v. Daily, 164 Wn. App. 883, 265 P.3d 945 (2011); WPIC 92.15.
Physical control under RCW 46.61.504 is generally a lesser-included offense of DUI because DUI includes the additional requirement of vehicular movement. State v. Nguyen, 165 Wn.2d 428, 433, 197 P.3d 673 (2008).
Ordinary DUI is a gross misdemeanor. It becomes a class B felony when the statutory conditions for felony DUI are met, including three or more prior offenses within fifteen years or certain prior vehicular homicide, vehicular assault, or felony DUI convictions. (RCW 46.61.502(5)–(6).)
Additional Questions About RCW 46.61.502
RCW 46.61.502(3) recognizes an affirmative defense when the defendant consumed enough alcohol or cannabis after driving, but before testing, to cause the qualifying concentration within two hours after driving. The statute requires advance notice of the defense before the omnibus or pretrial hearing.
The defendant, or accused, must prove the post-driving consumption by a preponderance of the evidence. However, Washington authority and WPIC 92.14 treat the defense similarly to self-defense, placing the burden on the prosecution to disprove it beyond a reasonable doubt once the defense has been sufficiently raised. State v. Robbins, 138 Wn.2d 486, 496–97, 980 P.2d 725 (1999).
RCW 46.61.502 expressly provides that being legally entitled to use marijuana, cannabis, or another drug is not a defense to the charge.
DUI is treated as a strict-liability offense, meaning the State ordinarily does not have to prove a culpable mental state. In a prescription-drug case, however, lack of knowledge about the drug’s intoxicating effects may be available as an affirmative defense. State v. Dailey, 174 Wn. App. 810, 300 P.3d 834 (2013).
The safely-off-the-roadway defense applies to physical control under RCW 46.61.504, not to driving under the influence under RCW 46.61.502. State v. Daily, 164 Wn. App. 883, 265 P.3d 945 (2011); WPIC 92.15.
Physical control under RCW 46.61.504 is generally a lesser-included offense of DUI because DUI includes the additional requirement of vehicular movement. State v. Nguyen, 165 Wn.2d 428, 433, 197 P.3d 673 (2008).
Ordinary DUI is a gross misdemeanor. It becomes a class B felony when the statutory conditions for felony DUI are met, including three or more prior offenses within fifteen years or certain prior vehicular homicide, vehicular assault, or felony DUI convictions. (RCW 46.61.502(5)–(6).)