DUI/DWI ● Physical Control ● BUI ● Minor DUI ● Marijuana DUI

There is not a week that goes by in which impaired driving is not in the news. Over the past years, drunken driving cases have encountered intense political, social, and media scrutiny – whether it is a professional athlete or politician accused of drunk driving or the tragedy of a fatal accident. The social stigma attached to being accused of DUI has never been greater. This attitude has been firmly planted in the minds of prosecutors statewide, in addition to law enforcement and judges. Washington State now has some of the toughest drunk driving laws in the country and it is only expected to get tougher.

In almost every area of our lives, errors in judgment can occur. A majority of those accused of driving under the influence are first-time offenders with no prior involvement in the criminal justice system. One brief mistake can have far-reaching and potentially lifelong consequences. At The Nahajski Firm in Seattle, Washington, we recognize that one bad decision does not define someone’s character, which is why we are dedicated to making this stressful time as easy as possible.


Driving Under the Influence: Overview

The general law in the State of Washington is that you cannot legally driver or be in physical control of a vehicle while affected to an appreciable degree by alcohol or drugs: regardless of whether you take a breath/blood test to determine its alcohol/drug content, or even if the result is below .080 for alcohol or 5.00ng THC. If you refuse the breath/blood test or are below the legal limit, it is still possible to be convicted of a DUI. In those situations, the prosecution will rely on the observations of the law enforcement officer as to the manner in which the car was driven, the performance on the field tests and any other factors that may indicate impairment.

Driving Under the Influence: Department of Licensing Administrative Suspension

The Washington State Department of Licensing will suspend your driver’s license if your breath or blood test results show an alcohol reading of over 0.08 or 5.00ng of THC (marijuana). The DOL also will suspend your license if you refuse a breath or blood test. At the time of arrest, the law enforcement officer will likely punch a hole in your license and give you a Driver’s Hearing Request Form, which explains you only have twenty days to submit the form along with $375 to request a hearing to challenge this otherwise automatic license suspension. A hearing request can also be processed online.

The lengths of the DOL Administrative suspensions are as follows:

First Administrative Action (with BAC .08/THC 5.0 or greater or under 21 years with BAC .02 or greater or any THC): 90 days license suspension

First Administrative Action (with refusal of breath or blood test): 1-year license suspension

Second Administrative Action (within seven years): 2-year license suspension

During your DUI administrative hearing, the hearing examiner will consider:

  • Whether you were under lawful arrest;
  • Whether an officer had reasonable grounds to believe you had been driving or were in actual physical control of a motor vehicle in this state while: a) Under the influence of intoxicating liquor or any drug or b) Having alcohol in your system of 0.02 or more and were under the age of 21;
  • Whether you were advised of your rights and warnings as required by RCW 46.20.308(2); and
  • Whether you refused to submit to the test or if the test was administered, whether the test indicated an alcohol concentration of 0.08 alcohol or 5.00 ng THC or more if you were age 21 or over or 0.02 alcohol or more or any THC if you were under 21.

The outcome of the DOL hearing has no impact on the criminal case. If you do lose your license administratively, you will be entitled to apply for an Ignition Interlock License which allows you to drive during the suspension if you have a functioning ignition interlock device in your car and you are carrying SR-22 high-risk insurance. Although the ignition interlock device can be removed after the license suspension, the SR-22 insurance requirement continues for three years.

Driving Under the Influence: Criminal Consequences

Although the DOL consequences are significant, they pale in comparison to the potential sentencing consequences if convicted in court.

Court – DUI Sentencing Grid
(RCW 46.61.5055 current as of 10-31-2013)

BAC Result < .15 or No Test Result No Prior Offense One Prior Offense Two or Three Prior Offenses
Jail Time Range 24 consecutive hours to364 days 30 to 364 days 90 to 364 days
EHM or Jail Alternative 15 days in lieu of jail 60 days mandatory or min. 4 more days jail 120 days mandatory or min. 8 more days jail
Fine Range $940.50 to $5,000 $1,195.50 to $5,000 $2,045.50 to $5,000
If Passenger Under 16Minimum/Range $1,000 to $5,000 + assessments $1,000/$2,000-$5,000 + assessments $1, 000/$3,000 to $10,000 + assessments
License Suspension 90-Day Suspension 2-Year Revocation 3-Year Revocation
II Driver’s LicenseII Device As ordered by DOL As ordered by DOL As ordered by DOL
If Passenger Under 16II Device 6 Months 6 Months 6 Months
Alcohol/Drug Ed./Victim Impact or Treatment As Ordered by Court As Ordered by Court As Ordered by Court

**Driver’s License Minimum suspension/revocation. DOL may impose more.

BAC Result  .15 or Test Refusal No Prior Offense One Prior Offense Two or Three Prior Offenses
Jail Time Range 48 consecutive hours up to364 days 45 to 364 days 120 to 364 days
EHM or Jail Alternative 30 days in lieu of jail 90 Days mandatory or min. 6 more days jail 150 Days mandatory or min. 10 more days jail
Fine Range $1,195.50 to $5,000 $1,620.50 to $5,000 $2,895.50 to $5,000
If Passenger Under 16Minimum/Range $1,000/$1,000 to $5,000 + assessments $1,000/$2,000 to $5,000 + assessments $1, 000/$3,000 to $10,000 + assessments
License Suspension 1-Year Revocation2 Years if BAC refused 900-Days Revocation3 Years if BAC refused 4-Year Revocation
II Driver’s LicenseII Device As ordered by DOL As ordered by DOL As ordered by DOL
If Passenger Under 16II Device 6 Months 6 Months 6 Months
Alcohol/Drug Ed./Victim Impact or Treatment As Ordered by Court As Ordered by Court As Ordered by Court


Driving Under the Influence: Marijuana

Although it is now legal to possess less than one ounce of marijuana in the State of Washington, you are still prohibited from driving while under the influence of marijuana or with a TCH level of 5.00 nanograms or more within two hours of driving. The same penalties apply to an alcohol related DUI as they do to a marijuana-related conviction.

Driving Under the Influence: Minor (<21 years of age) DUI

If under the age of 21, you may be charged with a “Minor DUI” if your breath or blood test indicated an alcohol content of between 0.02 and 0.08, or determines the presence of any amount of THC. Additional charges of being a Minor in Possession of Alcohol or marijuana are also possible. Those charges carry their own potential consequences including license suspensions and criminal record and high-risk insurance and even losing the opportunity to apply for federally funded student loans.

If arrested for a Minor DUI, the DOL will attempt to administratively suspend your license for 90 days on a first offense. If convicted criminally, the maximum penalty is up to 90 days in jail, a $1,000 fine plus up to two years of probation, a permanent criminal record and the possibility of alcohol/drug treatment.

Boating Under the Influence

Just as it is illegal to operate a motor vehicle while under the influence, it is likewise illegal to operate a vessel while under the influence. While the penalties are less significant than a traditional DUI and do not involve any driver’s license consequences, the charge is still a gross misdemeanor that carries up to 364 days in jail, a $5,000 fine plus up to two years of probation, a permanent criminal record and the possibility of alcohol treatment. Interestingly, the BUI statute applies to all “vessels,” that can be used for transportation, potentially including kayaks or even stand-up paddleboards.

A vessel operator may refuse to submit to a breath test but will be assessed a civil penalty of $1,000.00.

Ignition Interlock License

An Ignition Interlock License (“IIL”) allows you to drive vehicles equipped with an ignition interlock device while your regular license is suspended or revoked for a drug or alcohol-related offense. An ignition interlock device is an instrument you blow into before you can start your vehicle. You’ll only be able to start your vehicle if your breath alcohol content (BAC) reading is under .025.

The ignition interlock device won’t allow the vehicle to be started if it detects alcohol. The device may also require additional “rolling retests” while the vehicle is being driven.


To be eligible for an IIL, your driving record must show all of the following:

  • You have been arrested or convicted of any of the following:
    • DUI or Physical Control involving drugs or alcohol
    • Reckless Driving
    • Vehicular Assault involving drugs or alcohol
    • Vehicular Homicide involving drugs or alcohol
  • Your current suspension or revocation doesn’t include any of the following:
    • Minor in Possession
    • Habitual Traffic Offender (Suspended 1st degree)
  • You have a Washington State residence address.
  • You have an unexpired license, or have applied and passed testing for a Washington license.

Despite the potentially harsh consequences, in every DUI/DWI case, there are opportunities to improve your situation. It takes an experienced DUI attorney to be able to take advantage of those opportunities and pro-actively challenges all aspects of the government’s case: from the reasons for the initial traffic stop to challenging the admissibility of the breath/blood test. It is the skill and experience of your attorney that will be necessary to evaluate and pursue all legal and factual challenges to the case.

The most important first step you can take is to discuss your case with an experienced DUI attorney. The Nahajski Firm has almost forty years combined experience in representing those accused of DUI/DWI, Physical Control, BUI, and Minor DUI charges throughout the Puget Sound area. For a free initial consultation, contact The Nahajski Firm at 206-621-0500 or by email to discuss the exact the specifics of your case and to see what steps can be taken to minimize the possible consequences.

Deferred Prosecution: The Good and the Bad

The state recognizes that certain individuals need alcohol treatment to avoid driving while impaired. A deferred prosecution is a once-in-a-lifetime opportunity to seek treatment in lieu of a conviction. A deferred prosecution will result in the charge being dismissed after 5 years of compliance with the conditions of the program, however, in the event of a violation of any of the conditions, the deferred prosecution will be revoked and a guilty finding entered.

Even if the deferred prosecution is successfully completed and the charge dismissed, it will be considered the same as a prior DUI conviction if charged with another offense.

The steps required to successfully complete a deferred prosecution are extensive and expensive. Before deciding to enter a deferred prosecution you must consult with an experienced DUI attorney.

The following briefly describes the requirements of a deferred prosecution:

  1. You must admit you are an alcoholic and attend two years outpatient alcohol/drug treatment, and be responsible for payment (either personally or through health insurance);
    – Phase I: 72 hours over 3 months (3-4 times per week)
    – Phase II: 1x/week 8 months
    – Phase III: 1x/month 12 months
  2. Attend at least one session of the DUI Victims’ Panel;
  3. Minimum of two AA meetings each week for between two and five years;
  4. Probation for five years. Typically active probation for two years followed by inactive probation for three years (plus probation fees);
  5. No alcohol for five years;
  6. Random UA/BA at discretion of probation;
  7. No criminal law violations for five years (traffic tickets okay);
  8. Ignition interlock device in personal vehicle for twenty-four months;
  9. SR-22 Insurance for twenty-four months;
  10. If successful completion of the deferred prosecution
    – it is not a conviction;
    – you do not go to jail; and
    – you do not lose your driver’s license.

Frequently Asked Questions

Q: Can I get charged with DUI if the car was legally parked?

A: YES. If you are found to be in physical control of a motor vehicle, even if parked and the vehicle is not running, you can be charged with being in “Physical Control of a Motor Vehicle” that carries all the same potential penalties as a traditional DUI. An experienced DUI attorney will be able to determine whether the defense of being “safely off the roadway” prior to being pursued is an option. This statute can be violated even if the vehicle is not running. It is an affirmative defense to the charge, however, if, prior to being pursued by law enforcement, the suspect has moved the vehicle safely off the roadway. RCW 46.61.504(3).

Q: Can I get DUI on private property?

A: YES. Washington State DUI law states you are not to operate, or be in physical control of, a motor vehicle anywhere in the State. This includes private parking lots, parks, beaches, and driveways.

Q: Can I get a DUI if I refuse the breath test or it’s under 0.08?

A: YES. The basic premise of DUI law is that it is illegal to “drive a motor vehicle while affected to an appreciable degree by alcohol and/or drugs.” However, if your breath test reading reached 0.08 or 5.0 ng THC, you are legally presumed to be affected by the alcohol you consumed.

Likewise, if you refuse to submit to a breath or blood test, you can still be convicted of DUI if the prosecution can establish that you were “affected to an appreciable degree” by the alcohol/drugs consumed.

Q: Do I have to submit to a breath test?

A: NO (Although, we do recommend you to take it). Everyone asked to submit to a breath or blood test can refuse the test. HOWEVER, the consequence is that the Department of Licensing will suspend your privilege to drive for a minimum of one year. This administrative sanction is completely separate from the potential criminal penalties.

Q: How long will I lose my license?

A: IT DEPENDS. There are actually two types of suspensions related to a DUI/Physical Control arrest. The first is the “Administrative” suspension. This is a penalty imposed by the Department of Licensing alone and has nothing whatsoever to do with the criminal case. The length of the administrative suspension varies depending on the individual, however, every administrative suspension can be challenged by sending in the “Driver’s Hearing Request Form.”

The suspension will begin on the sixtieth day following your arrest. The length of the suspension will differ depending on the exact circumstances of your case. In every case, however, the only way to avoid this suspension is to send in the Driver’s Hearing Request Form.

It is your responsibility to send in the form as instructed on the Hearing Request Form within 20 days of the date of your arrest. If you are even one day late, your request for a hearing will be denied.

Q: If I lose my license can I drive to work (“Occupational/Restricted Driver’s License”)

A: Sometimes. You may use an ORL for:

  • Work, including self-employment, WorkFirst, apprenticeship, or on-the-job training.
  • School, if you’re enrolled in an educational institution and pursuing a diploma, degree, or other certification.
  • Court-ordered community service.
  • Substance abuse treatment or 12-step meeting, if no transit service is available.
  • Continuing your own healthcare, driving to a healthcare provider.
  • Providing continuing care of someone who is dependent on you.
  • Applying for an apprenticeship or on-the-job training. This type of ORL gives you 14 days to apply for these employment programs.

ORL driving restrictions

An ORL restricts the:

  • Times of day you may drive (not to exceed 12 hours in a 24-hour period).
  • Days of the week you may drive.
  • Areas where you may drive.
  • Vehicles you may drive (only vehicles that you’ve filed proof of financial responsibility).

There are a number of disqualifying conditions that may prevent you from being eligible. For full eligibility requirements and a Restricted Driver License Application, contact the Department of Licensing.

Q: What should I do if I am pulled over for DUI?

A: The first thing you should do is be polite and respectful to the officer. If you are polite and respectful, then there is a very good chance you will not be booked into jail and they may even drive you home. Avoid answering any questions whatsoever, including whether you have been consuming alcohol. By the time the question is asked, the officer likely already knows you have consumed alcohol.

Any experienced DUI attorney would recommend respectfully declining to perform any roadside tests. These tests include the traditional tests such as the “walk and turn,” “finger to nose” and balance tests, but also include the horizontal gaze nystagmus and portable breath test. Almost everyone contacted by an officer for suspicion of DUI are asked to perform such tests, however, they are completely voluntary. After declining to perform any roadside tests, it is likely you will be handcuffed and taken to a local police station for the breath test.

Once at the station, you request to speak with an attorney immediately. In general, this office advises suspects to submit to the breath test at the station. If you remember that the only piece of evidence you should have provided is the breath test at the station, you will provide your attorney many more opportunities to improve your situation.

Every case has its own unique problems, consequences, and opportunities. No two cases are alike. We encourage you to call and speak personally to a lawyer about the details of your unique circumstances. Call us at 206-621-0500 or by email for a free consultation with one of our experienced DUI/DWI attorneys today.

The Nahajski Firm is available for cases in any Washington State Superior, District or Municipal Court, in addition to United States District Court. These courts include: King County Superior Court and Snohomish County Superior Courts, Juvenile Court, and district courts located in Seattle, Bellevue, Burien, Issaquah, Auburn, Redmond, Kent, Shoreline, Renton, Regional Justice Center (RJC), Lynnwood (South District Court), Monroe (Evergreen District Court), Arlington (Cascade District Court) and Everett District Court. Municipalities where we regular appear include: Seattle, Mercer Island, Kirkland, Lake Forest Park, Newcastle, Clyde Hill, Kenmore, Shoreline, Hunts Point, Bothell, Issaquah, Renton, Des Moines, Sea-Tac, Normandy Park, Tukwila, Federal Way, Sammamish, Woodinville, North Bend, Snoqualmie, Fall City, Duvall, Lynnwood, Edmonds, Mill Creek, Mukilteo, Monroe, Snohomish, Marysville, Lake Stevens.