is this a DUI charge?

[whatabighassle]

What is the name of your state? Washington
My daughter had been at a baseball gave and was drinking beer (she is over 21) - she ate & waited about 3 hours before driving her car - she had also been at work all day before the baseball game, and when she was driving home, she apparently fell asleep. She drove off the side of the road into a ditch. There was a police officer following her down the road. He took her to the police station where they did a breathalizer test (actually they did several) & of the 8 trys they all came out between .032 and .079. In Washington the legal limit is .08. Her driver's license was punched and she was given a copy of 2 of the tests (both under .08) and a paper citing RCW46.20.308 - which we have read it appears to apply to people who either refuse the test - or are above .08 - I (and she) could understand if the charge is negligent driving - but aren't they supposed to tell you what you are being charged with? & shouldn't there be evidence that you were in abeyance of the particular law they are citing?

[CdwJava]

If she was not issued a citation, chances are that the case is pending and she will be charged later. You can be DUI without being .08 or higher. .08 is the presumptive level of intoxication ... less than that is either a seperate offense or simply DUI under the legal limit.

The problem here is that she had alcohol in her system and she ran off the road. The presumption will likely be that she fell asleep because of the alcohol impairment. Additionally, if they could not get two good blows, her eight blows could be considered a refusal. The system usually requires two blows within .02 BAC of each other. Depending on the device used, her long delays may have resulted in an aborted test and thus could be considered a refusal. That may not be the case here, but without looking at the paperwork it is only speculation. But it would explain the temporary suspension o fher license.

- Carl

[comet3]

The eight blows might also be because he previous blows were not efficient enough. You have to breath deep lung air into the machines in order for them to work properly, it you don't the officer and the machine knows it. Even if the legal limit is .08 she can receive a DUI, normally anything .08 or above may become a DWI instead.

[whatabighassle]

Originally Posted by CdwJava

If she was not issued a citation, chances are that the case is pending and she will be charged later. You can be DUI without being .08 or higher. .08 is the presumptive level of intoxication ... less than that is either a seperate offense or simply DUI under the legal limit.

The problem here is that she had alcohol in her system and she ran off the road. The presumption will likely be that she fell asleep because of the alcohol impairment. Additionally, if they could not get two good blows, her eight blows could be considered a refusal. The system usually requires two blows within .02 BAC of each other. Depending on the device used, her long delays may have resulted in an aborted test and thus could be considered a refusal. That may not be the case here, but without looking at the paperwork it is only speculation. But it would explain the temporary suspension o fher license.

- Carl

So from what you are saying -this isn't going to be just pay the $200 for the court cost and $250 for a negligence. (that is an estimate & I am just curious to help her how to handle it - not paying). The other thing is, I understand they could (or is it should) have offered her a blood test & did not - will that factor in? - thanks

[CdwJava]

Originally Posted by whatabighassle

So from what you are saying -this isn't going to be just pay the $200 for the court cost and $250 for a negligence. (that is an estimate & I am just curious to help her how to handle it - not paying). The other thing is, I understand they could (or is it should) have offered her a blood test & did not - will that factor in? - thanks

I am not familiar with the procedures in WA state, so I can only relate this to what would happen in CA. If this happened in my state she could still be charged with DUI. And, in most states - if not all - there are test options that must be provided IF AVAILABLE. If there was no practical way to draw blood at the time, then it does not have to be given as an option. In my state, after a breath test the suspect has the option of a blood draw that they can have tested at their own expense later on should they choose to do so. I do not know if WA has the same option built into the law.

Your daughter needs to consult an attorney to find out her options. The DA may decide he doesn't have enough for a DUI charge and may instead cite for a lesser offense involving failure to control the car or some such thing. On the other hand, he may find he has enough to go forward on a DUI (or DWI ... whatever you want to call it). Only an attorney in WA could best tell her what might happen in HER situation.

- Carl