Penalties for a Second DUI Conviction in Washington

If you have a previous DUI on your record, you might already be familiar with the process. However, what you might not know is that there is a mandatory minimum sentence for all levels of DUI for a second offense.

For each DUI conviction you receive in Washington state, the penalties increase. However, you should not consider your situation hopeless. Our lawyers have had good success in getting second and even third offense DUIs reduced to reckless driving.

Under RCW 46.61.5055, all DUI offenses have a jail requirement. This mandatory minimum sentence requires at least 48 hours in jail, even for a first offense, with second offenses getting at least 30 days in jail. There are ways to get this converted to home confinement instead, but you need to show a jail sentence would create substantial hardship.

For help fighting DUI charges, call the Washington DUI lawyers at the Law Offices of Smith & White at (253) 203-1645.

Is there a Mandatory Minimum Jail Sentence for a Second-Time DUI in Washington?

Sentencing laws for DUI in Washington state are very strict. CRW 46.61.5055 contains subsections for each of these levels of DUI offense, plus sections for repeat offenses:

DUI with a BAC under .15%
DUI without a BAC (for reasons other than refusal)
DUI with a BAC of .15% or higher
DUI without a BAC because of refusal

Mandatory Jail for Second Offenses

By the letter of this law, all second offenses have a mandatory jail sentence.

For a BAC under .15% (or missing results without refusal), having one prior offense gives you a mandatory 30-364 days in jail plus 60 days of electronic home monitoring (EHM).

For a BAC at or over .15% or a missing BAC because of refusal, the mandatory sentence is 45-364 days in jail plus 90 days of home monitoring.

Mandatory Jail for Third Offenses

If you have two prior DUIs on your record, a low-BAC DUI gets you 90-364 days in jail, 6 months in a 24/7 sobriety program, and 120 days of home monitoring.

If you have two priors, a high-rate DUI or refusal DUI gets you 120-364 days in jail, 6 months in a 24/7 sobriety program, and 150 days of home monitoring.

Unlike a First Offense, the Prosecutor Will NOT Easily Reduce the Charge

For this reason, you’ll need a bold, veteran defense attorney. You’ll likely need a creative, detailed, highly worked challenge to the State’s case to have any hope of reduction. Absent a reduction, you’ll need the same for a hope of winning your trial. The chance of a trial goes up significantly on a second or subsequent offense because the penalties are so severe.

Our attorneys can look at the testing records of the BAC machine. We can make sure the machine was properly tested. We can review if the testing was timely. We can see how the test has performed in the time period before you test to make sure the machine does not have a history of malfunction. We can review the testing of the external standard (the bubbling vat attached to the machine) to make sure it was properly prepared. Errors with any of these procedures can invalidate your test result and greatly improve your chances of winning your case. We can review the confidence interval analysis, basically the margin of error on the machine, to see if there was a chance you were under the legal limit.

There are dozens of other potential challenges we can bring to improve you case for trial or for reduction. Were you lawfully contacted? Did the Officer/Trooper engage in illegal search and seizure of your person? Were you validly read your rights? Were you informed of the implied consent Statute and knowingly make a decision as to your BAC or Blood draw? These are just some examples of the challenges that can be brought against your DUI charge to avoid these increased penalties.

Can I Do Probation or House Arrest Instead?

If you did home monitoring (i.e., an ankle monitor) for your first offense, you might be hoping to get a similar punishment or probation instead of jail time for a second DUI. While it is possible, your Washington DUI lawyer must show that jail time “would impose a substantial risk to the offender’s physical or mental well-being.”

Legal Standard

This substantial risk standard usually means showing you have some physical or mental condition or disability that would make jail time especially burdensome.

You may also be able to show that missing your role as primary caregiver for a child or disabled/elderly adult would cause you a mental burden, but this is not strictly within the terms of the kind of “substantial risk” the law envisions.

Judge’s Decision

The judge ultimately decides if you can use an alternative sentence. The statute requires them to state, in writing, the reason for their leniency, and it gives some examples of things to consider.

One thing the judge can explicitly consider is participation in a 24/7 sobriety program before being tried and sentenced. If you do this, the judge might allow you to continue doing the sobriety program as punishment instead of jail time.

Electronic Home Monitoring Alternative for Second-Time DUIs

If you do meet this standard, you can get the “alternative” sentence, which is also built into the statute.

Under this alternative, there are two possible sentences:

Electronic home monitoring for a longer period
Participation in a 24/7 sobriety program.

For low-rate second-time DUIs, the EHM alternative is 180 days, and the 24/7 sobriety alternative is 120 days.

For a high-rate second-time DUI, the EHM alternative is 6 months, and the 24/7 sobriety alternative is also 120 days.

One thing to consider is that you have to pay for EHM – i.e., you have to pay to rent the ankle monitor and have it checked/monitored. The same is true for 24/7 sobriety programs, though you might have health insurance that can cover some of this cost.

Remember that this all comes on top of the fines you might face for second-time offenses, which equals $500-$5,000 for a high-rate second offense and $750-$5,000 for a high-rate second offense.

What Counts as a “Prior Offense” for DUIs in Washington

What counts as a “prior offense” is actually very specific under RCW 46.61.5055(14).

7-Year Window

For you to face DUI penalties as a second-time offender, the first offense must have been within the past 7 years. Older offenses do not count.

For example, if you had a DUI when you were 20 years old and another at 26, the first offense would count as a prior offense. If you got a third DUI at 28, the first DUI would be too old, but the second offense would still count as one prior DUI.

This counts from the date of the arrest, not conviction.

Offenses that Count as Priors

Any level of DUI counts as a prior offense. It does not have to be the same high/low-rate offense. Additionally, violations of equivalent local DUI ordinances (rather than these state DUI laws) also count.

These previous crimes also count as priors for sentencing:

Drugged driving
Drunk/drugged boating
Drunk/drugged aircraft operation
Driving a non-street-legal vehicle drunk (e.g., an ATV or electric scooter)
Drunk/drugged snowmobiling
Vehicular homicide
Vehicular assault
Negligent or reckless driving while drunk
Reckless endangerment involving drunk driving

Out-of-state DUIs that would qualify under Washington’s laws also count as priors.

Call Our DUI Defense Lawyers in Washington Today

Your ace in the hole, which is worth saving if possible because you only get one substance related treatment option for a DUI in your lifetime, is to pursue a Deferred Prosecution (DP). A DP has many pitfalls and requires considerable paperwork such that is best to have an attorney assist with pursuing this option. Plus, you’ll want to make sure you do not have another good alternative before using this avenue of last resort. A Deferred Prosecution is not an easy course. However, it can be better than suffering a DUIs penalties, especially if the Jail time may cause you to lose a job or otherwise suffer a severe negative consequence. We offer a reduced fee for assisting with Petitioning for a Deferred Prosecution since it is not as much work as preparing for a jury trial.

For help with your case, call Smith & White at (253) 203-1645 today.