Driving While Under the Influence of Alcohol is a gross misdemeanor in Washington State, punishable by up to one year in jail and $5,000 in fines. In addition, you face revocation of your driver’s license, mandatory installation of an ignition interlock device on all cars you drive, court-ordered alcohol evaluation and treatment, and doubled or tripled insurance rates. The severe criminal penalties and collateral consequences make DUI in many ways more serious than a felony prosecution.
There are two authorities which can impose penalties as a result of a citation for DUI: the courts and Washington State’s Department of Licensing. The courts can order you to serve jail time and pay fines, and can also order DOL to revoke your driver’s license. DOL also has the independent authority to suspend or revoke your license. Separate hearings are held before the Department of Licensing and the courts to determine these penalties.
In the criminal proceeding, you will eventually have to plead guilty or not guilty to the charge. If you plead guilty you will be immediately sentenced. If you plead not guilty, you have the right to contest the matter at a trial. If at the end of that trial the judge or the jury finds you guilty, you will then be sentenced. The severity of the sentence depends upon your level of intoxication and your criminal history.
I. COURT-IMPOSED PENALTIES
A. MINIMUM PENALTIES
The following are the minimum penalties for the offenses listed. In addition, the court can and often does impose additional penalties, listed below.
1. First DUI Offense (within 7 years):
a. Breath test above .08 but less than .15: 1 day jail, $990.50 in fines, full license privileges suspended 90 days, mandatory ignition interlock for duration of license suspension plus one year.
b. Breath test of .15 or higher, or refused to take test: 2 days jail, $1,245.50 in fines; if breath test of .15 or higher, then full license privileges suspended for one year; if breath test refusal, then full license privileges suspended for two years; mandatory ignition interlock for duration of license suspension plus one year.
2. Second DUI Offense (within 7 years):
a. Breath test less than .15: 30 days jail, 60 days electronic home monitoring, $1,245.50 in fines, full license privileges suspended for two years, mandatory ignition interlock for duration of license suspension plus five years.
b. Breath test of .15 or higher, or refused to take test: 45 days jail, 90 days electronic home monitoring, $1,670.50 in fines, full license privileges suspended for 900 days (three years if there was a breath test refusal), mandatory ignition interlock for duration of license suspension plus five years.
MAXIMUM PENALTIES: The foregoing sets forth the minimum jail sentence and monetary fine. Upon any DUI conviction, a judge may impose up to 365 days in jail and a $5,000 fine. Usually, a substantial jail sentence is imposed, with all but the mandatory minimum suspended during a probationary period that may be as long as five years. The suspended jail time may be imposed at a later date if the defendant fails to comply with the sentence during the period of probation.
If you have a license from another state, your home state will be notified of the conviction and take action.
B. ADDITIONAL COURT-IMPOSED PENALTIES
1. Probation: A period of probation must be imposed, up to five years in length, if the Court suspends any portion of the maximum sentence. The Whitman County District Court routinely orders probation supervision fees in the amount of $50 per month.
a. Probation Violation: If you violate certain mandatory terms of probation (for example, by driving while your license is suspended, without insurance, without an ignition interlock device if one is required, getting a new DUI, or refusing a breath test), the court must impose 30 days jail time. You also face whatever penalty is imposed as a result of conviction for the new crime. (For example, an arrest for DUI could result in both a probation violation and a conviction of DUI.)
2. Alcohol Evaluation and/or Treatment: All persons convicted of DUI are required to obtain an alcohol evaluation. The cost of an alcohol evaluation varies depending on income level, and can cost as much as $115. If that evaluation determines that you have an alcohol problem, you will be required to undergo treatment which could be either a one or two-year program.
If the evaluation determines that you do not have an alcohol problem you will nevertheless be required to attend what is called Alcohol/Drug Information School (ADIS). ADIS consists of 12 hours of class work spread over two days. The physiological effects of alcohol are explained to encourage temperate drinking. The usual cost of ADIS is $100.
3. Ignition Interlock Device: As discussed more fully below, if you are convicted of DUI, the court can require you to obtain an ignition interlock device on your vehicle while the charge is pending. This requirement is mandatory if you have had a prior DUI. Also, if you are convicted of DUI, you will be required to have an ignition interlock device installed on your vehicle following any period of suspension.
5. Visiting Canada: If you are convicted of DUI, you will not be able to enter Canada, in all likelihood, for a period of ten years. This consequence also applies if you are convicted of Negligent Driving in the First Degree, if the original charge was DUI. This consequence is due to Canada’s policies; it is not something that can be negotiated with the local prosecutor or the Court.
II. DOL-IMPOSED PENALTIES
A. LICENSE SUSPENSION PERIODS
Any person arrested for DUI or Physical Control who submits a breath test with an alcohol concentration of .08 or higher or refuses the breath test, will be served with a notice of intent to suspend or revoke his license. The length of suspension or revocation depends on the driver’s record. (Additional provisions apply to those under 21, which are discussed below.) The fee to request a hearing and challenge the DOL-imposed suspension is $375. The Department of Licensing can suspend or revoke your license regardless of whether you are convicted of DUI. DOL can impose the following license suspensions:
- 1st DUI in seven years: If breath test is above .08, then 90-day suspension; If breath test refusal, one-year suspension.
- 2nd-or-Subsequent DUI in seven years: If breath test is above .08, or breath test refusal, then two-year suspension (or until age 21 for a minor, whichever is longer)
Entry into a deferred prosecution program – discussed below – will avoid a license suspension, but is a huge personal and financial commitment.
B. IGNITION INTERLOCK DRIVER’S LICENSE
If you are arrested for DUI, you will likely be able to continue to drive during the period when your license would otherwise be revoked or suspended by applying for an Ignition Interlock Driver’s License (IIDL).
You may apply for an IIDL before or after your license is revoked. The IIDL requires you to maintain a functioning ignition interlock device on all vehicles that you drive. You do not need to have an IID on vehicles provided by your employer, provided the employer supplies a declaration stating that you are required to operate the vehicle during work hours. If you receive an IIDL in lieu of suspension, you must pay for the costs of installation and removal of the ignition interlock device, as well as a monthly fee while the device is being used.
You are entitled to have a hearing with DOL to contest the suspension of your license. Unfortunately, if you receive an IIDL prior to the DOL Hearing, then you would waive the right to have that hearing. However, you would not lose any rights in the criminal proceeding.
If you are convicted of DUI, the court will order you to apply for an IIDL. You will bear the costs of installing and leasing the ignition interlock device.
C. TIMING OF LICENSE SUSPENSION
The license suspension initiated by DOL commences 30 days after arrest. If you request a hearing with DOL to contest your license suspension, the suspension will not go into effect until the hearing officer makes a ruling. You must request a hearing with DOL within 7 days of arrest or you waive your right to have the hearing.
Administrative license suspensions and court-imposed license suspensions run concurrently. For example, if the court orders a 90-day suspension and the Department of Licensing orders a 90-day license suspension, the total period of suspension will not exceed 90 days.
III. DEFERRED PROSECUTION
In view of the ever-increasing penalties for DUI and Whitman County’s limited plea bargain policy, serious consideration should be given to the deferred prosecution program. If convicted of DUI, recall that you will be required to obtain an alcohol evaluation and comply with whatever treatment is recommended. If the evaluation concludes that you are an alcoholic or a substance addict (which terms cover a broad range of problems) you will be required to complete a two-year treatment program.
If a person obtains an evaluation before entering a plea and if the evaluation recommends this two-year program, a person may enter into the treatment program. If a person successfully completes a two-year program, and does not have further arrests for a total period of five years, the DUI charge is dismissed. You certainly do not want to be in the situation of having to complete a two-year treatment program plus incur the penalties of a conviction. If the treatment is going to be required, you should agree to do it “up front” and avoid the conviction.
The treatment program is very strenuous. It requires intensive inpatient or outpatient treatment, follow-up treatment, and attendance at Alcoholics Anonymous twice a week for two years. For example, the typical program involves an eight week period during which you attend classes three nights a week for three hours a night, followed by a 26-week period of once-a-week classes of 1½ hours per night, followed by one counseling session per month for the remainder of the two years; in addition, one must attend two AA sessions per week while doing this treatment.
A person who successfully completes the deferred prosecution program is not convicted and therefore avoids the penalties which a conviction would cause, in particular no jail time. However, there are license consequences associated with the Deferred Prosecution (at least one year of ignition interlock required), and there are probation costs.
A deferred prosecution program is time-consuming and strict compliance is required. The costs vary depending on your treatment provider – they typically run about $2,700.00 over the two years. Most health care insurance policies provide coverage for a substantial portion of the cost.
If you decide to seek a deferred prosecution, we will assist you in obtaining an alcohol evaluation from an approved agency. If the evaluation concludes that you suffer from alcoholism or substance addiction and will benefit from treatment, we prepare a formal petition and go to court with you to seek approval from the judge. Prior to this, you would fill out a document entitled Statement of Defendant which goes into great detail concerning the legal consequences of a deferred prosecution. In essence, you would agree that if you do not fulfill the terms of the program, you will be brought back to court and found guilty.
Because the Department of Licensing will automatically suspend your license 30 days after your arrest, absent a successful administrative hearing, it is important that you obtain the alcohol evaluation and that we obtain the order deferring prosecution from the Court within that 30-day period. The deferred prosecution eliminates the license suspension. However, as a condition of granting an alcohol-related deferred prosecution, the court must order installation of an ignition interlock device, for at least one year.
The penalties if you are convicted of DUI after being revoked from the deferred prosecution program are normally substantially greater than if you had pleaded guilty in the first place. So, you should not enter into this program without being seriously committed to it.
IV. LEGAL CONSIDERATIONS
A. COURT PROCEDURE
If you are charged with DUI, you will be ordered to appear in court personally within 24 hours of the arrest (by the end of the next week day). If you are charged only with other offenses, your attorney can appear for you.
At your first appearance, the judge will explain the basic penalties, your legal rights and ask you how you plead. If you plead guilty you will be immediately sentenced. If you plead not guilty, the judge will schedule a pre-trial conference and a trial at a later date.
A trial date must occur within 90 days of the plea.
Continuance: If the trial date scheduled is inconvenient for you or any witnesses, it is possible to have the case continued to a more convenient time.
Jury/Non Jury: You have a right to decide whether your case should be tried by a jury or not. If you decide on a jury, it will be six in number. If you do not have a jury, the judge decides your guilt or innocence.
B. LEGAL RIGHTS
DUI is a crime and therefore you have all the rights that a person charged with any crime has. Your are presumed innocent–the burden is on the prosecution to prove beyond a reasonable doubt that you are guilty. The officer must actually come to court and tell his story under oath, at which time he will be cross-examined.
You may have witnesses testify on your behalf.
You have the right to remain silent – that is, the prosecution may not force you to testify. As a practical matter it is very unlikely that a successful outcome can be obtained without your testimony. If you do testify, you must tell the truth. To do otherwise would be a very serious crime of perjury.
You have the right to represent yourself. If you do not wish to do so, you have the right to be represented by an attorney. That is an expense you must bear unless you are indigent. In that situation, the court may appoint an attorney to represent you but if you are ultimately convicted, a condition of your sentence would be to reimburse the county for the costs of your court-appointed lawyer.
C. WHAT MUST THE PROSECUTION PROVE?
In order to convict you of DUI or physical control the prosecution must prove beyond a reasonable doubt one of two things: (1) that you either were driving or in physical control of a motor vehicle at a time your ability to drive was affected to an appreciable degree because you had consumed intoxicating liquor and/or drugs; or (2) that within two hours of driving or physical control your breath or blood alcohol level was .08 or more.
The prosecution must prove beyond a reasonable doubt that the test was administered accurately and that the results obtained were accurate. There are guidelines showing what blood alcohol levels should be, based upon one’s weight and the number of drinks consumed. There are methods available to discredit the breath test if the results obtained simply do not reconcile with the facts of your drinking. Nevertheless, the test results are quite reliable and usually accepted as accurate.