Can you be arrested for an Attempted DUI in Washington State?

This question was posed to me by a friend a few weeks ago. He asked the following hypothetical and whether someone could get arrested for a DUI in Seattle because of it. Lets say after a night of drinking someone decides to go to their parked car and drive home. When they get to their car they are so bombed that they cannot put the key in the ignition. Obviously they are trying to try drive, but physically cannot because they are so impaired. An Officer happens to see this and in an effort to prevent someone driving drunk the individual is arrested.

First lets take a look at the definition of “attempt.” Attempted crimes are considered inchoate offenses. The definition of an inchoate offense is a type of crime where an individual takes a substantial or punishable step towards the commission of a crime. Common inchoate offenses include solicitation, conspiracy, and of course attempted. So clearly on this hypothetical I guess this could be seen as an inchoate offenses due to the attempt to drive drunk.

Secondly I told my friend I was not aware of any published case law in Washington State discussing the idea of an attempted DUI, but a quick Westlaw search showed this issue has come up in California. In the case of People v. Garcia, the California Appellate Court held the California Penal Code sections dealing with “attempt” are applicable in DUI cases. In the Garcia case the defendant was found in the drivers seat of the vehicle in the fast lane with the hazard lights on. As Officers approached the car the vehicle began to roll backwards as the defendant attempted to start the vehicle. Subsequently the defendant was arrested. Now this sounds awfully similar to the hypothetical my friend posed, so what would happen in Washington State.

Well Washington State has a very unique crime for this particular set of facts. It is called Physical Control. RCW 46.61.504(1) states A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state: (a) And the person has, within two hours after being in actual physical control of the vehicle, 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 does not constitute a defense against any charge of violating this section. No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.

(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 being in actual physical control of the vehicle 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 being in such control. 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.

So under the proposed set of facts my friend suggested. That individual would get arrested. Although not for an Attempted DUI, but for a Physical Control. In addition a Physical Control carries all the same penalties as a DUI in terms of jail, fines, license suspension, ignition interlock requirement, mandatory probation, alcohol treatment, and SR22 insurance.

About the author: Matthew Leyba is a DUI lawyer in Seattle, WA. He is rated as one of the top Seattle DUI Lawyers by Avvo, and listed as Rising Star in DUI Defense by Super Lawyers Magazine and Seattle Met Magazine.