Skip to main content

Sobriety tests

Washington |
Attorney answers 5


In Washington State, the government can attempt to prove DUI by satisfying one of two prongs under the DUI statute. Under one prong, called the per se prong, the government has to prove beyond all reasonable doubt that an individual operated a motor vehicle in the state and that within two hours of driving had an alcohol concentration of .08 or higher.

The other prong, which would apply to this scenario, requires that the government prove that the individual operated a motor vehicle within this state and was under the influence of or "affected by" intoxicating liquor or any drug. Therefore, the government does not necessarily have to have a breath test into evidence to attempt to prove DUI, but it is certainly subjective and subject to scrutiny. The "field tests" you took, you probably did pass, but the determination was made by an officer who has complete discretion to rate the results of the "test." The government has been much more active in charging persons who blew under the legal limit with DUI and that is another reason you need a skilled DUI attorney to assist you when facing these charges.

Please feel free to contact me to discuss your DUI arrest.


When I prosecuted DUIs for the City of Seattle we never charged a DUI when the breath test reading was below 0.08. However, Seattle is only one jurisdiction of hundreds across Washington. You would be amazed at what prosecutors charge these days. One of my final cases involved an individual that provided a 0.03 breath test, and she was well over the age of 21.

No matter how iron clad you feel your case is, or if you truly believe you are 100% innocent you should hire an experienced DUI defense attorney. The innocent need an aggressive defense more so than the guilty. Going to jail, losing your license and dealing with the other mandatory DUI penalties will be a nightmare. Do not think the judge or prosecutor will be looking out for your interests either. Tragic as that seems it is the flat truth.


This happens more often than you may think it does. Citizens ACCUSED of DUI-DWI often feel an overwhelming sense of guilt, when there is no reason to feel that way, IF you were not impaired and the test results are below the per se limit [0.08 for persons age 21 and over who are not operating a commercial motor vehicle under a CDL license endorsement].
DUI is America's ONLY "crime of degree". You cannot embezzle a little money and not be guilty of a crime. You cannot point a gun at someone and take their money and not be guilty of armed robbery, even if the gun was a fake, or that you took 2 cents from the person.
Officers who make these arrests never apologize. They will not "let you go". They push forward with a case that is below par (for the prosecution) until the prosecutor decides what to do with the case. Often, they are, in part, concerned about a civil claim for false arrest.
Your best bet is to go to these AVVO listings and check out the BEST of the best of the DUI attorneys in your state. Go with the "DUI" category and add "WA" for your state at the bottom. Then, click on the option at the top of the resulting page for "Best Ratings Descending" order. Any attorney of that page should be highly qualified.
Then, cross-reference this with Washington Lawyers in, and read the profiles of your TOP THREE picks for your geographic area. This is the pre-eminent web site and directory for America's top DUI-DWI practitioners. Any person who is a Regent, a Fellow, a Founding Member or a Sustaining Member or the State Delegate is a leader of the Washington Bar in this field. Hopefully, you will find your 3 AVVO candidates somewhere on the list, too. Some of these people will be further down the list of NCDD members, because they joined later. But, they have obviously shown their mettle by being rated at or slightly below 10.0 with AVVO. If he or she is not found on the NCDD site, though, the AVVO attorney is not participating in the cutting-edge national seminars at which the latest breaking ideas on DUI defense are shared. You should ask him or her why he/she is not attending these training seminars regularly.
Make appointments to meet with the top 3, and get a feel for their personalities, experience in YOUR particular court, and see how their staff member interact with you.
If you are still undecided, plan a trip to YOUR court (and your judge) prior to your assigned court date. Sit and watch the proceedings. When a break occurs, approach the front of the court area (but not in the area inside "the Bar" where the attorneys and litigants sit). Ask one or more court personnel about what they know about each of the people on your list, in THAT court, and his or her reputation as a TRUE FIGHTER for his or her clients. You may ask the person, "If this was your case or your family member's case, and you HAD to win your case, and wanted to go with the lawyer most likely to accomplish that for you --- among these 3 attorneys that I have narroed it down to --- who would you put your money on?"
If price is the criteria that makes you decide on one of the top people over the other, then you may get what you pay for. These trial lawyers are like GUNFIGHTERS. They cannot accept every challenge to a shootout (i.e., they can't do ALL the cases in that area), but the BEST of them will charge a higher price BECAUSE THEY CAN.
I cover this process of how to evaluate DUI attorneys in greater detail in Chapter 4 of my book for clients, The DUI Book.


There are two different "prongs" of the DUI statute in Washington State. One, the one most people are familiar with, is to have a breath or blood alcohol content above .08.

The other, however, appears to be where you are.

You may be charged if there is reason to believe that your "ability to drive" is "affected" to some appreciable degree by alcohol and/or drugs.

Field Sobriety testing is one way to determine if someone's ability to drive is affected - and even though you might blow below .08, they can still charge it as a DUI.


In many states, including Washington state, a person can be convicted of driving under the influence if the government can prove that the driver was appreciably affected by alcohol or drugs. This is true if the breath test is below the legal limit, or even if the driver never submits to a breath test.