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(1) A person
is guilty of driving while under the influence of
intoxicating liquor or any drug if the person drives
a vehicle within this state:
(a) And the person has, within two hours after
driving, an alcohol concentration of 0.08 or higher
as shown by analysis of the person's breath or blood
made under
RCW 46.61.506; or
(b) While the person is under the influence of
or affected by intoxicating liquor or any drug; or
(c) While the person is under the combined
influence of or affected by intoxicating liquor and
any drug.
(2) The fact that a person charged with a
violation of this section is or has been entitled to
use a drug under the laws of this state shall not
constitute a defense against a charge of violating
this section.
(3) It is an affirmative defense to a violation
of subsection (1)(a) of this section which the
defendant must prove by a preponderance of the
evidence that the defendant consumed a sufficient
quantity of alcohol after the time of driving and
before the administration of an analysis of the
person's breath or blood to cause the defendant's
alcohol concentration to be 0.08 or more within two
hours after driving. The court shall not admit
evidence of this defense unless the defendant
notifies the prosecution prior to the omnibus or
pretrial hearing in the case of the defendant's
intent to assert the affirmative defense.
(4) Analyses of blood or breath samples
obtained more than two hours after the alleged
driving may be used as evidence that within two
hours of the alleged driving, a person had an
alcohol concentration of 0.08 or more in violation
of subsection (1)(a) of this section, and in any
case in which the analysis shows an alcohol
concentration above 0.00 may be used as evidence
that a person was under the influence of or affected
by intoxicating liquor or any drug in violation of
subsection (1)(b) or (c) of this section.
(5) Except as provided in subsection (6) of
this section, a violation of this section is a gross
misdemeanor.
(6) It is a class C felony punishable under
chapter 9.94A RCW, or chapter 13.40 RCW if the
person is a juvenile, if: (a) The person has four or
more prior offenses within ten years as defined in
RCW 46.61.5055; or
(b) the person has ever previously been convicted of
vehicular homicide while under the influence of
intoxicating liquor or any drug,
RCW 46.61.520(1)(a),
or vehicular assault while under the influence of
intoxicating liquor or any drug,
RCW 46.61.522(1)(b). |
