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DUI DWI Physical Control And Defenses

RCW 46.61.502 and 2008 c 282 s 20 are each amended to reads as follows:
(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:
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or

(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

(2) 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.

(3) It is an affirmative defense to a violation of subsection (1) (a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

My Legal Commentary
Many people think that prescription drugs should be an excuse or partial excuse for a DUI or Physical Control charge. In Washington, legal intoxication need not only involve alcohol; it can include a combination of alcohol and medically necessary prescription drugs, prescription drugs alone, or recreational drugs.

This state of affairs makes it very difficult for persons who take medicine to reasonably regulate their drinking. The interaction of prescription drugs and alcohol generally leads to a higher blood alcohol level. Law enforcement does not care about the need an individual to take prescription drugs.

Moreover, illegal (recreational) drugs detected in a blood test are looked upon with even more contempt by the Prosecutor. This contempt is generally reflected in a more demanding drug and alcohol treatment program along with less of a tendency for favorable negotiation by the Prosecutor.

The defense of drinking after driving is extremely difficult to assert without sober witnesses and an expert toxicologist. For most people, the cost alone is prohibitive.

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Nicholas George - Spokane Criminal Attorney & DUI Attorney

1312 N. Monroe, Suite 263, Spokane, WA 99201
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