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D.W.I.PENAL CODE - CHAPTER 49 PENAL CODE CHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES § 49.01. DEFINITIONS. In this chapter: (1) "Alcohol concentration" means the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine. (2) "Intoxicated" means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or(B) having an alcohol concentration of 0.08 or more. (3) "Motor vehicle" has the meaning assigned by Section 32.34(a). (4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.(5) "Amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.(6) "Mobile amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 234, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1364, § 8, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 1420, § 14.707, eff. Sept. 1, 2001. § 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.(d) An offense under this section is not a lesser included offense under Section 49.04.(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1997, 75th Leg., ch. 1013, § 12, eff. Sept. 1, 1997. § 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE. (a) In this section:(1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.(2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:(A) a glove compartment or similar storage container that is locked; (B) the trunk of a vehicle; or (C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.(3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.(d) An offense under this section is a Class C misdemeanor. (e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.Added by Acts 2001, 77th Leg., ch. 969, § 2, eff. Sept. 1, 2001. § 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.(b) Except as provided by Subsection (c) and § 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, § 14.55, eff. Sept. 1, 1995. § 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER. (a) A person commits an offense if:(1) the person is intoxicated while operating a motor vehicle in a public place; and(2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.(b) An offense under this section is a state jail felony. Added by Acts 2003, 78th Leg., ch. 787, § 1, eff. Sept. 1, 2003. § 49.05. FLYING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating an aircraft.(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. § 49.06. BOATING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a watercraft.(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. § 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.Added by Acts 1999, 76th Leg., ch. 1364, § 9, eff. Jan. 1, 2000. § 49.07. INTOXICATION ASSAULT. (a) A person commits an offense if the person, by accident or mistake:(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.(c) An offense under this section is a felony of the third degree. Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, § 10, eff. Jan. 1, 2000. § 49.08. INTOXICATION MANSLAUGHTER. (a) A person commits an offense if the person:(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.(b) An offense under this section is a felony of the second degree. Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, § 11, eff. Jan. 1, 2000. § 49.09. ENHANCED OFFENSES AND PENALTIES. (a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.(c) For the purposes of this section: (1) "Offense relating to the operating of a motor vehicle while intoxicated" means:(A) an offense under Section 49.04 or 49.045; (B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.(2) "Offense of operating an aircraft while intoxicated" means: (A) an offense under Section 49.05; (B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.(3) "Offense of operating a watercraft while intoxicated" means: (A) an offense under Section 49.06; (B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;(C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.(4) "Offense of operating or assembling an amusement ride while intoxicated" means:(A) an offense under Section 49.065; (B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.(e) Except as provided by Subsection (f), a conviction may not be used for purposes of enhancement under this section if:(1) the conviction was a final conviction under Subsection (d); (2) the offense for which the person is being tried was committed more than 10 years after the latest of:(A) the date on which the judgment was entered for the previous conviction;(B) the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction;(C) the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction; or(D) the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and(3) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).(f) A conviction may be used for the purposes of enhancement under this section regardless of when the conviction occurred if the conviction was for an offense under:(1) Section 49.08 involving the operation of a motor vehicle; or (2) Section 19.05(a)(2), as that law existed before September 1, 1994, involving the operation of a motor vehicle.(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, § 14.56, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, § 21, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1364, § 12, 13, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 648, § 1, 2, eff, Sept. 1, 2001; Acts 2001, 77th Leg., ch. 969, § 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 787, § 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1275, § 2(117), eff. Sept. 1, 2003. § 49.10. NO DEFENSE. In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, § 14, eff. Jan. 1, 2000; Acts 2003, 78th Leg., ch. 787, § 3, eff. Sept. 1, 2003. § 49.11. PROOF OF MENTAL STATE UNNECESSARY. (a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.(b) Subsection (a) does not apply to an offense under Section 49.031. Added by Acts 1995, 74th Leg., ch. 318, § 22, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 969, § 4, eff. Sept. 1, 2001. § 49.12. APPLICABILITY TO CERTAIN CONDUCT. Sections 49.07 and 49.08 do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.Added by Acts 2003, 78th Leg., ch. 822, § 2.05, eff. Sept. 1, 2003.
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Drunk Driving DefenseWashington DUI / DWI and Drunk Driving Defense, WA DUI Attorney Geoffrey Burg. Home Your Rights FAQs Credentials Testimonials Costs Criminal Defense Directions Free Consultation. Call today. 206.467.2607 Toll Free. 888.252.8856 DUI/DWI Defense. Articles | BAC Calculator | DOL | Forms | Glossary | Laws | Links | Penalties Law Offices of Geoffrey Burg, LLC Pacific Building 720 3rd Ave., Suite 2015 Seattle, WA 98104 Phone: 206.467.2607 Fax: 206.467.3152 Email: geoff@glblaw.com Free Confidential Case Evaluation: Name: Daytime Phone: E-mail Address: Description of Charges: "I want to thank you for your help with my case. You were able to turn a possible life altering situation into just a great learning experience. I appreciate the time you spent on my case. Your sense of urgency and dedication to your work is priceless. I now know first hand why you were recommended to me. Thanks again for everything. Take care ." - Tracy Stopped for DUI? We would like to help you fight your Washington State DUI charges. Please call us so that we may do that. It is what we do – day in and day out, every day, every year. We have been doing it, collectively, for almost two decades. We are passionate about our work and will be doing it for years to come. We have helped hundreds of people who are in a similar situation as yours fight their charges. We have had great results, with many people having their Washington DUI cases dismissed, reduced to a lesser charge, or found not guilty after a trial. Washington State DUI Legislative Update. Click Here for the Latest Changes in WA State DUI Law... We understand after an arrest for a Washington State DUI, many people have feelings of despair, hopelessness, and even anger. We are here to tell you that there is hope that your charge will be successfully resolved and even more importantly, that you will make it through this period. Now you know that we represent people accused of Washington State DUIs. Here is how we do it. 1. Free Initial Consultation : We meet with you in our office, for free and for as long as it takes. We like to do this DUI consultation in person (not over the phone) because this is the best way to hear about your case and give you legal advice. There is simply no substitute for a face to face meeting. At that meeting we: • review the facts of what happened the night you were stopped for your Washington State DUI or DWI; • identify potential issues that may make it difficult for the government to prosecute you on your Washington State DUI; • describe the Washington State DUI law, as well as, the Washington State DUI procedure that you will be facing over the next few months; • outline different options you may have in your Washington DUI case; and, • provide you with a "game plan" in the form of a list of things to do to help you resolve your Washington DUI charges in the best possible manner. 2. Our Job: If you decide that one of us is a good fit to work with you on your Washington DUI (it is your choice who you work with and promise not to hard sell you, we only want to work with people who want to work with us) then we will we begin representing you in your Washington State DUI charges. We represent people all over the state on DUI Charges, but most often in King, Pierce and Snohomish Counties. Representation includes: • Attending all court hearings with you, including your Department of Licensing Hearing; • Answering all your phone calls, emails and questions within 1 day (usually immediately); • Investigating your case; • Advising you of your options for your Washington DUI charges and giving you our opinion of what you should do; • Reviewing the DUI arrest report with you; • Aggressively fighting your case – this means negotiating with the prosecutor, filing legal motions, representing you in court; and doing whatever it takes to get you the best deal possible for your DUI charge. (Please note, if you want fist pounding, shouting and screaming lawyers, we are not for you – that is not our style. We have found that we get the best results by being ourselves - civilized, honest and hardworking, not by grandstanding). • Being there to “hold your hand” throughout the entire DUI process – beginning to end, in court, in the office, and over the phone. 3. Commitment: We strive to be a firm of integrity. Here are our goals: • Honesty • Direct and no-nonsense • Hard-working • Organized • Professional • Excellent at what we do • Provide top-notch customer service • Respected by judges, prosecutors and other lawyers. Based upon feedback from our clients, it appears that we are living up to these goals and are committed to doing so in the future. 4. Who We Are: We both feel fortunate that other people have recognized us for being good at what we do. Here is some information about our backgrounds and accomplishments: Geoffrey Burg • “Super Lawyer” recipient by peers in Washington Law & Politics Magazine . • Speaker and chair of seminars regarding DUI defense. • Writer of numerous articles . • In July 2002, I discovered a problem with the breath-testing machine - the "caretakers" ( Washington State Patrol Breath Test Technicians ) of the machine were not following all the rules for calibrating it. I successfully litigated this issue and was able to suppress thousands of breath tests around the state. As reported on the front page of the Seattle Post-Intelligencer , and other periodicals around this State, this meant that for my clients, as well as other people who fell under the time period when the instrument was not being properly calibrated, if the breath test showed a reading above a .08 BAC, then it would be kept out of evidence and no judge or jury would ever learn of the result if the DUI went to trial. • Legislative Liaison for the Washington Association of Criminal Defense Lawyers. In this role I wrote, lobbied for and passed three laws that help people accused Washington State DUI. (Photo: Geoffrey Burg at the right, present for the signing of HB 1589.) • Graduate of Gerry Spence’s Trial Lawyers College. Mr. Spence is one of the best known trial attorneys in the world and he chooses 48 people a year to come live with him on his ranch in Wyoming for 21 days to train as a trial lawyer. I was fortunate enough to have been chosen to attend this program and completed it in 2001. Photo: Geoffrey Burg with Governor Gregoire. • Member of the only two Washington State DUI organizations that you must be voted into – the Washington Foundation for Criminal Justice and the Northwest Academy of DUI Defense. Combined, these two organizations have under 25 members of people considered of the highest caliber of representing those accused of Washington State DUIs. Most importantly, I have had great success in helping people accused of DUI. My rate of having people found not guilty at trial is higher than the state average. In addition, I pride myself (and gauge how well I am doing) by the number of thank you notes I receive from my clients. I feel proud in saying that I regularly receive these. Patricia Fulton • I devote my practice to defending clients accused of crimes, especially DUIs. I am very proud of the reputation as a thoughtful and articulate advocate I have earned while defending people accused of DUI in Washington. • Named a “Rising Star” by Washington Law and Politics Magazine. • Member, and past President of the Northwest Academy of DUI Defense – a Washington State DUI Defense organization with exclusive, by invitation only, membership. • Speaker/Presenter at DUI related seminars. • Author of articles regarding DUI Defense. • Membership of numerous criminal defense and trial organizations, including the Washington Association of Criminal Defense Lawyers. • Member of the King County Bar Association and member of the King County Bar Association’s Lawyer Referral Oversight Committee. • Admitted Washington State Bar and Federal District Court, Western Washington Division . Tammy LaLanne: As our paralegal, Tammy keeps us organized and on time. She is the person who greets you on the phone and helps with many of the details of your case. While we try and speak to you in person when you call, if we are in court, Tammy is the one that will make sure your questions are answered. • Graduated from Paralegal School • Working with attorney’s since 1989. We have designed this web site to try and answer every Washington DUI question that you may have. We did this because we know that knowledge is power and we wanted to give you back some of the power that you may feel you have lost from your arrest. We would like the opportunity to meet with you and discuss your Washington DUI related case. Please give us a call or email us so that we can begin to help you resolve your case. P.S. – this is the disclaimer that our insurance carriers probably want us to make: Disclaimer: The legal system is complicated and people often find it has as many twists and turns as a maze. This is certainly true with Washington State DUI work. It is for these reasons that the information contained in this site is not legal advice and does not substitute for speaking with us, or any other Washington State DUI attorney out there about the particulars of your Washington State DUI charge. Each Washington State DUI charge really is unique and really does require individualized attention through a face-to-face consultation. The pages in this web site contain a lot of information, but just reading it does not make one an experienced attorney. Washington DUI law is very complicated and heavily litigated and there is a lot more information out there than can be put on just one web site, or probably even learned in a lifetime for that matter. Please, only make decisions about your case based on the personal advice of a lawyer. GB & PF Call our office to schedule a free consultation: 206.467.2607 © 2005 Law Offices of Geoffrey Burg, LLC Home | Your Rights | FAQs | Credentials | Testimonials | Costs | Criminal Defense | Directions Law Offices of Geoffrey Burg, LLC Pacific Building 720 Third Avenue, Suite 2015 Seattle, WA 98104 Phone: 206.467.2607 Fax: 206.467.3152 Email: geoff@glblaw.com
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