Can You Be Prosecuted For Under .08? – YES

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,” “Over the limit, Under Arrest,” “Buzzed Driving Is Drunk Driving,” and “Nighttime seat belt,” campaigns, are all 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...


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,” “Over the limit, Under Arrest,” “Buzzed Driving Is Drunk Driving,” and “Nightime seatbelt,” campaigns, are all 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. 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. I have 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 .0, and another was over the limit but NOT even driving and they were all still charged and prosecuted.  While the charges were all dismissed, the process was unnecessary and stressful for them.

How can this be? It happens because there are two distinct sections in our DUI law. One part of the statute sets forth the Per Se .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.

The road signs you see announcing the .08 legal limit are essentially 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.