subject: Three Common Myths About Duis [print this page] Myth #1: I"m safe if I"m under the "legal limit."
This is by far the most common of all the DUI myths. To most people"s amazement, you can be arrested for (and convicted of) DUI if you are under the "legal limit" of 0.08% B.A.C. In fact, there is no defined legal threshold for when someone can drive after consuming alcohol (in fact, I once defended a 0.02% DUI case). Instead 0.08% B.A.C. represents a point, above which, you are per se (or legally presumed to be) too impaired to drive. If you blow above this "legal limit" for DUI the burden shifts to the driver to show that the B.A.C. test results were not accurate; that the breath testing machine was not functioning properly or some environmental factors caused an inaccurate reading.
In Washington, under RCW 46.61.502(1); a person is guilty of driving while under the influence if the person drives a vehicle within this state and the person has, within two hours after driving, an alcohol concentration of 0.08% or higher or while the person is under the influence of or affected by intoxicating liquor. What this means is that when you are under 0.08% (or there is no breath or blood test results) the burden shifts to the City or State prosecutor to show that your ability to drive was affected by alcohol. Thus, you can still be charged with, and convicted of, DUI when you are under the "legal limit."
As DUI prosecution efforts increase around the area I"ve been approached by more and more clients with 0.06% and 0.07% DUIs. This is especially frustrating to these individuals. Most of these folks did exactly what they thought they were supposed to do under the DUI laws. They cut off their drinking at a level where they knew they would be under 0.08%, waited awhile before driving, then proceeded home. To make matters even more frustrating, almost none of these under 0.08% DUI clients that I encounter are ever pulled over for any bad "DUI driving;" such as weaving, alternating speeds or driving erratically. Instead, they are almost always stopped (often leaving the bar parking lot) for not signaling 100 feet prior to turning or for a tail light being out. Next thing they know they are arrested for DUI and facing the most serious misdemeanor charge possible. Fortunately there are things you can do to protect yourself. If you are stopped for DUI you must provide your license, registration and insurance. Beyond that you should never agree to take any tests or give any statements until after you have spoken with a DUI attorney. (And, of course, the only sure way to avoid a DUI is to not drink and drive.)
Myth #2: I can"t be charged with DUI if I"m taking prescription drugs as prescribed by my doctor.
Washington"s DUI law states: "(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state"While the person is under the influence of or affected by intoxicating liquor or any drug; or While the person is under the combined influence of or affected by intoxicating liquor and any drug." More importantly, RCW 46.61.502(2) indicates: "The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section." Therefore, whether the drugs are legal or not is irrelevant. The question is whether or not the driver"s ability to drive was affected by the drug.
Unlike an alcohol DUI, there is no "legal limit" for any particular drug. Because of this many otherwise law abiding citizens find themselves facing drug DUI charges based on blood tests that indicate the mere presence of drugs. Often when a driver is suspected of a drug DUI they will be subject to the pseudoscience of an "examination" by a "Drug Recognition Expert." The results of the Drug Recognition Exam are then used as evidence of impairment in court. Make no mistakes about it. DRE examinations are conducted solely for the purpose of gathering evidence against you. Just like an alcohol DUI above, there are things you can do to protect yourself. If you are stopped by an officer you must provide your license, registration and insurance. However, you should never agree to take any tests or give any statements until after you have spoken with a DUI attorney that understands drug DUIs. (And of course, like above, the only sure way to avoid a drug DUI is to not take ANY drugs before driving.)
Drug DUI cases are the most technical of all misdemeanor cases. It is imperative that if you are facing drug DUI charges you should hire an attorney that has the background to understand the "science" in these cases as well as the experience to employ effective drug DUI defense strategies.
Myth #3: The officer is less likely to arrest me if I cooperate and pass his tests.
One of the most frustrating problems as a DUI defense attorney is when clients, whom I believe are innocent of DUI charges, have provided the prosecution with lots of "evidence" before ever talking to an attorney. Don"t get me wrong, I do not blame the client for this. We are taught to cooperate with officers from a very young age. On the other hand, officers are taught to be persuasive and take advantage of our fears and our willingness to do what an officer asks of us. In my experience, if an officer is asking you questions about DUI or asking you to take roadside sobriety tests she has already decided your fate. Anything you do in response to this "can and will be used against you."
Officers trained in "DUI Detection" are looking for "clues" the moment they observe your vehicle. Part of this training involves contacting the driver and how documenting their observations in manner most likely to lead to a DUI conviction. Any questions asked and tests given are designed to bolster the case they are building against you. This does not mean you should not be polite or cooperative with an officer when stopped, BUT the decision of whether or not to answer questions or participate in roadside tests is voluntary. You do not have to provide this evidence! Always ask to speak with a DUI attorney before deciding whether to respond to the officer"s demands for potentially self-incriminating evidence. Remember these tests are not designed for you to "pass." Too often, the act of a driver trying to convince the officer that he or she is not intoxicated, and thus to not to arrest for DUI, leads to a stronger DUI case against that person.
