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The .08 Limit is a Half
Truth
By Jonathan Rands, of Fox Bowman Duarte
Washington State has done a good job of publicizing that if you drive at
.08 or higher, you will be prosecuted. The State Patrol’s "drive
hammered, get nailed" campaign, coupled with the national campaign of
"Over the limit, Under Arrest" is very effective in putting the dangers
and consequences of drunk driving in the minds of Washington drivers.
So, knowing this, you have one glass of wine with dinner or maybe a
cocktail after work or a pint of Guinness for St. Pat’s. You know you
aren’t drunk. |
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Suspended if you take the test? Ok, what
if you refuse? It only gets worse! Either a flat out refusal by the
driver, or the subjective belief by the officer that the person is
refusing (blowing into he machine improperly) will cause a licensing
revocation. A "revocation" is different from a "suspension."
You know you are not
even close to the legal limit. You are a responsible person, not a
law-breaking criminal. You don’t even panic when the red and blues
start flashing in your rearview mirror. Maybe you should
panic. What most motorists do not know is that Washington has in fact
abandoned the concept of a "legal limit" in favor of prosecuting any
drinking driver, even if the driver’s breath test is well under the
legal limit. The .08 limit is a half truth. I know. My firm has
represented numerous citizens in Whatcom, Skagit, Island counties, and
elsewhere who were all well under the "legal limit" of .08 but they were
still prosecuted for DUI. In fact, two clients’ breath samples were .02
and they were both still charged and prosecuted.
How can this be? It
happens because there are two distinct sections in our DUI law. One part
of the statute sets forth the .08 "legal limit," but the other part says
you can be charged with DUI if you are "under the influence of or
affected by intoxicating liquor." Surprisingly, a driver who knows he or
she is under the .08 legal limit will still be charged with a DUI if the
police officer who stopped him or her forms an opinion that the person
is "affected by" alcohol. The officer’s opinion is based upon his or
her observations of the driver and the driver’s performance on field
sobriety tests. Most of the time these field sobriety tests are not
videotaped and thus, there is no independent evidence for you to rebut
the officer's opinion that you failed the tests.
If you are under the
legal limit and yet charged with DUI you will face an experienced
prosecutor and a harrowing journey through the legal system. If a plea
bargain is offered, such as a reduction to Reckless or Negligent
driving, you may be intimidated into taking the deal because the
prospect of going to trial and possibly being convicted of DUI is so
terrifying. This is how you can wind up with a criminal record without
ever blowing over a .08.
The road signs you
see announcing the .08 legal limit are a half-truth. The whole
truth is that being under a .08 is no "safe harbor" from being
prosecuted for DUI, and refusing the breath test will only make things
worse. Even if you are found innocent of DUI, refusing to take the test
will result in a year’s revocation of your license by the Department of
Licensing. If you are convicted of DUI after refusing the breath test,
you’ll lose your license for two years even if you previously had a
clean criminal record. Who says our DUI laws are not tough? Taken
together with the real but unannounced policy of "no tolerance" towards
any drinking driver, citizens are on notice: don’t rely on being under
an .08 to keep you out of jail.
About the author:
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