While President's Day isn't considered an especially important holiday to most, it does create a three-day weekend and this year it is coupled with a Friday Valentine's Day to kick it off.  Undoubtedly, the prompting of cupid's arrow and with love in their eyes couples will go out to a restaurant to dine and those couples will probably consume a glass or two of wine or champagne.  This leads to the decision as to whether or not the driver should make that decision to operate a motor vehicle after those couple of glasses of their favorite libation.

I know most persons will make an intelligent decision and not drive if they feel impaired but this scenario presents a precarious proposition.  Alliteration aside (ha ha) many will face a situation in which they feel that after a couple of glasses of wine it is fine to drive, and guess what, the legislature of every state in the nation agrees with you!  This is precisely why you see .08 plastered on signs all around our communities because it is legal to drink and drive.  Yes I said it, it is legal to drink and drive.  In Washington State, it is illegal to have an alcohol concentration above .08 within two hours of driving or to be under the influence of or affected by what you have consumed.  That second phrase is where decisions to drive become more tricky.

What DUI attorneys commonly refer to as the "affected by" prong of the DUI statute (RCW 46.61.502) creates a very subjective situation for officers.  Picture this, if you have had those two glasses of wine, beer, whatever and are stopped and actually admit to drinking you will, in all likelihood, be asked to participate in field sobriety testing and if you decline will most certainly be arrested.  Then think further, you are arrested are anxious, nervous and upset and now the officer wants you to take a breath test!  Oh my good Lord, what do I do, I mean I don't feel impaired or over the .08 threshold but don't know what to do.  Let's say you are advised to refuse, now you are in a situation wherein the officer is going to elaborate in his or her report regarding the observations they made with respect to their contact with you and those observations will certainly include bloodshot, watery eyes, a flushed face, dexterity problems, maybe some balance issues and for sure slurred speech.  What, slurred speech!  But I only had two drinks!  I know, I know, but the officer will testify at a subsequent trial, "they all say two but in my opinion she/he was impaired by alcohol"!!! This scenario presents itself time and again and people are genuinely shocked that the police report alleges observations not consistent with reality.  Why, because the officer knows you had at least two (hell you admitted as much) and that they don't have any other objective evidence to support their decision to arrest, so they must elaborate.

Now I'm not saying every officer is going to just make up outright lies, but you can bet your bottom dollar there will be "observations" they made which you, the now defendant, dispute.  Why?  Because no matter what the legislature says law enforcement agencies have an unwritten rule that drinking and driving is a no-tolerance offense.

Well, crap, what should I do you say?  The easiest and best decision in this day and age is to take a cab or don't drive after drinking anything.  I don't necessarily think there is anything wrong with drinking a beer and driving home and neither does the state legislature, but if an officer doesn't get what they want on the side of the road when they ask, despite all of it being voluntary, you are going to find yourself charged with a DUI!  So again, just take a cab or don't drink at dinner, just wait to have some champagne at home, trust me you will be in no mood for Valentine's activities with your partner if you just bailed out!