In Washington State, the laws surrounding DUI allegations can be confusing if the defendant is under 21 years of age. It is commonly thought that the “legal limit” for DUI for an underage driver is .02. However, this is not quite true. The legal limit for DUI is .08 irrespective of the age of the driver. However, for underage drivers who blow under .08 (but over .02) there is a special crime called Driver Under 21 Consuming Alcohol under RCW 46.61.503. This is a less serious offense than DUI.
These statutes can even cause confusing for law enforcement. Just about every DUI lawyer has seen cases where a driver under 21 is cited for the lesser charge even when his or her breath is well over .08. It is sometime the advice of the defense lawyer to simply plead guilty to the offense as soon as possible before the prosecuting attorney can catch the mistake.
A DUI charge is a gross misdemeanor and is punishable by up to 364 days in jail and a $5,000 fine. Driver Under 21 Consuming Alcohol is just a misdemeanor and is punishable by up to 90 days in jail, and a $1,000 fine. These is no mandatory minimum jail sentence for the lesser charge.
The statutory difference between these offenses is confusing, and DUI lawyers occasionally see the offense incorrectly listed in the newspaper. Defense lawyers are usually slow to request that the paper make the correction because that will mean that the client’s name will simply be in the paper twice.
Driver Under 21 Consuming Alcohol is sometimes referred to as “minor op” or “baby DUI”. For this offense, it is not necessary that the prosecutor prove that the .02 level caused the driver to be impaired or under the influence. Also, despite the name of the statute, it is not necessary that the prosecutor prove that the consumption actually occurred when the minor was behind the wheel.
A defense lawyer representing a person on this charge will occasionally be able to get the charge reduced to a non-driving offense like Minor Publicly Exhibiting the Effects of Alcohol. This crime is also a misdemeanor but it looks better on a person’s record.