All 50 states in the U.S. have made it illegal to drive a car or other vehicle when your blood alcohol content (BAC) is at or above 0.08%. However, it might be a surprise to hear that Washington is one of the states where you can get arrested, charged, and even convicted for Driving Under the Influence (DUI) when your BAC was under this number.
The reason for this is that Washington's DUI law   is written in a very particular way that allows for almost anything to happen, including to many people's surprise, conviction on DUI charges even when they are under the applicable legal limit. Other states have DUI laws that simply make it a crime to have a 0.08% Blood Alcohol Concentration (BAC) or higher while operating a vehicle. However, in Washington, it is a crime to be over the legal limit, or to be driving while under the influence of alcohol or a drug. This is our State's so-called "affected by" prong -- you can be convicted of DUI in Washington State if your driving is deemed to be appreciably "affected by" your consumption of alcohol and/or drugs (legally prescribed, illegal or over-the-counter drugs -- it doesn't matter).
This is an important “or” in the law. It means that you can be charged and convicted for DUI even if you do not have the requisite 0.08% BAC. All that is necessary for you to face a DUI charge is to be “under the influence" of or "affected by” alcohol and/or drugs.
Of course, we know how difficult it can be to figure out if someone is under the influence. Everyone shows drunkenness differently. Some people become angry while others are happy. Most people tend to get louder the more they drink, some in the amount of words or their volume, while some people stop talking altogether. However, if in the few moments a police officer has during a traffic stop to decide whether or not you are under the influence of something, they observe uncoordinated or 'loose' behavior, then you could find yourself in handcuffs in the back seat of their patrol vehicle, on your way to jail and about to face DUI charges with potentially stiff penalties.
In practice arrests of drivers under the legal limit are uncommon, but every DUI attorney sees them on a regular basis. In neighboring Oregon, where the DUI law is fundamentally similar to Washington's, law enforcement there has become so aggressive that a term has been coined for DUI charges against drivers “caught” with BAC's under 0.08% – “low blows.” (Note: That term in Washington State refers instead to a blow at or over the Washington State 0.08% legal limit but less than 0.15%; a blow at or over 0.15% in Washington is termed a "high blow," and those as with refusals to blow carry higher mandatory minimum jail and fine penalties in Washington - if you are convicted of the DUI at that level, something an experienced DUI defense practitioner can often avoid via plea negotiations, pretrial motions, or both.)
The discretion our state's law gives to police officers to arrest and refer to the prosecutor for the filing of DUI charges when a driver is under the legal limit is almost unrestrained and gives them the offensive and suspicious ability to abuse their power. However, the fact that it is possible to get arrested and convicted for DUI even though you were driving under the legal limit is a good one to keep in mind the next time you are out drinking: You can pass portable hand-held breath and roadside field sobriety tests, but if the cop still has reason to believe that you are under the influence of alcohol or any drug(s), you will nonetheless be arrested for DUI.
If this happens to you or a loved one, do not hesitate to contact experienced DUI-defense attorney Phil Weinberg now at (425) 367-1122 or online. Fight a tough criminal offense charge with the even tougher, relentless defense that I offer!