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Washington Felony DUI Lawyer

Understanding Felony DUI Laws

Driving under the influence (DUI) of drugs or alcohol can be a felony charge in the State of Washington. While DUI is typically a gross misdemeanor in the State of Washington, when other circumstances exist, the offense can also be considered a felony. The penalties for a felony DUI are extremely serious, with major impacts on your finances and freedoms.


To be convicted of a Washington DUI charge, the prosecutor has to prove each of the elements of the offense beyond a reasonable doubt. These elements include that you either:

  • operated a motor vehicle and your breath or blood test resulted in a blood alcohol content (BAC) level of 0.08 percent or higher within 2 hours of driving (DUI per se); or
  • operated a motor vehicle while affected by drugs, alcohol, or any combination of the two.

The prosecutor must prove that you were either operating the vehicle (e.g., driving) or had physical control of the vehicle.

Physical Control of a Motor Vehicle

"Actual physical control" is not defined under Washington law. However, cases in this area have helped to provide some useful examples of what this phrase means:

  • a person sitting in the driver's seat of the car, while it is running;
  • a person sitting in the driver's seat after it ran out of gas; and
  • a person such as a passenger who takes hold of the steering wheel (even for a small amount of time).

A person charged with physical control can raise the defense of "safely off the roadway." A person is safely off the roadway when the location of the vehicle is not on:

  • the road itself,
  • the curb of the road,
  • the median, or
  • the side of the road.

It is up to the defendant to prove this defense by a preponderance of the evidence standard.

DUI Misdemeanor vs. Gross Misdemeanor

Most cases of DUI in Washington are considered gross misdemeanors and are subject to the penalty ranges associated with them.

If a DUI is for an under-21 DUI and within the 0.02% to under 0.08% range, it will still be a simple misdemeanor. Otherwise, it is likely a gross misdemeanor. If you are not sure about whether you face a regular misdemeanor, gross misdemeanor, or felony DUI, an experienced Washington DUI attorney can answer your questions.

When a DUI is a Felony in Washington State?

A DUI is a felony when any of the following factors are present:

  • you have been convicted of 3 previous DUI's within a 10 year period;
  • you have previously been convicted of another felony DUI; or
  • you have either a prior DUI related vehicular homicide or vehicular assault.

Prior DUI Offenses

Like many other jurisdictions, the State of Washington has decided that a certain number of previous DUI convictions or other prior offenses can lead to a felony charge rather than a typical gross misdemeanor charge. In this state, that number of prior convictions is 3.

That means that if this is your 4th alleged DUI, you now face a felony charge. The number of charges must have occurred within a 10-year period.

A DUI is not the only prior offense that can accumulate to create a felony charge. A DUI can be charged as a felony if you have previously been convicted three or more times of any of the following criminal activity:

  • DUI or being in physical control while under the influence of drugs and/or alcohol;
  • Reckless driving, Reckless Endangerment, or Negligent Driving in the First Degree if reduced from original DUI charge;
  • Operating a vessel under the influence of drugs or alcohol;
  • Recklessly operating a vessel if reduced from operating a vessel under the influence;
  • Operating an aircraft under the influence;
  • Recklessly operating an aircraft if originally filed as operating under the influence;
  • Operating a non-highway vehicle under the influence;
  • Operating a snowmobile under the influence;
  • Vehicular Assault;
  • Vehicular Homicide;
  • Similar out-of-state convictions; and
  • Entry into a deferred prosecution for any of the above offenses, whether or not successfully completed.

DUI Vehicular Assault

If a person has been charged with a vehicular assault that was related to a person driving under the influence of drugs or alcohol in the past, the charge will also be a felony. A vehicular assault occurs when someone driving under the influence causes someone else to experience substantial bodily harm. Substantial harm includes any of the following:

  • temporary yet substantial impairment or loss of an organ or body part;
  • temporary yet substantial disfigurement; or
  • a fracture.

Unlike with the prior DUI offenses category, this is not limited to the last 10 years nor does it require 3 prior offenses. In fact, if you were ever convicted of DUI vehicular assault, even once, your current DUI charge is now a felony.

DUI Vehicular Homicide

The same is true of a prior charge of vehicular homicide. A single charge in your entire life will result in a current DUI charge being a felony DUI. 

Vehicular homicide occurs when a person causes the death of a victim as the result of the use of a motor vehicle. The death can occur even within 3 years of the accident taking place.

Penalties for Felony DUI

Penalties for a felony DUI in Washington depend on a number of factors. A felony DUI is a Class C felony in the State of Washington. 

If convicted of the offense, a person faces the following potential penalties:

  • a prison term for a maximum duration of up to 5 years; 
  • a maximum possible fine of up to $10,000; and
  • a driver's license suspension of 1 to 3 years.

In order to arrive at the exact sentence within that range, the judge will determine the defendant's offender score. An offender score is determined by taking into consideration such factors as:

  • the severity of the crime;
  • the defendant's prior convictions; and
  • the type of crime.

Judges are also able to consider other relevant factors when determining the final sentence.

Defending Your Felony DUI Charge

Just because you are charged with a crime, does not mean you will be found guilty of a DUI. There are defenses that can be raised on your behalf to protect your rights, including but not limited to:

  • Challenge Blood and Breath Tests: These "tests" are not always accurate and are required to be performed under very specific procedures. Failure to follow these specific procedures can result in the evidence from the test being thrown out.
  • Unconstitutional Stops or Searches: When the initial traffic stop is unconstitutionally performed, it can be the basis for a challenge or a suppression motion. The same is true for searches of either your person or your vehicle. Suppressed evidence cannot be used against you in court.
  • Challenge Field Sobriety Tests: Field sobriety tests, such as the walk and turn test, are very inaccurate, and often result in false positives. Juries can be shown this to help challenge the case against you.
  • Challenging Prior Convictions: A prior arrest is not a conviction, and prosecutors sometimes make this mistake. You may not need to face felony charges, but may instead properly face only misdemeanor DUI charges.

Consult Our Washington Felony DUI Lawyers

If you or someone you care about has been arrested for felony DUI in Washington, you need an experienced DUI lawyer to defend your case and protect your constitutional rights.

Experienced DUI lawyer James Curtis at The Curtis Firm can help with your criminal case. Contact us today for a consultation.   

Service Areas

The Curtis Firm, LLC is located in Tukwila, the midpoint between Seattle and Tacoma. We also serve clients throughout Western Washington to include Seattle, Bellevue, Renton, Auburn, Seatac, Burien, Federal Way, Fife, Puyallup, Tacoma, and Lakewood.

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