Myth or Fact: What You Should Know About DUIs

By NTL member Barbara Bowden

Myth: You can’t be charged with a DUI if your BAC is <.08 The legal limit for DUI is .08. If your breath or blood alcohol level is .08 or above, you will be arrested for DUI. However, if you blow under a .08, you can still be arrested for DUI. The prosecutor will proceed with the DUI charge under the “affected by” prong of the statute. According to RCW 46.61.5055, even if your BAC is under the legal limit, you can still be convicted of a DUI if it can be proven that your driving is affected to an appreciable degree. The prosecutor will attempt to prove the DUI using issues with driving as well as physical indicators of impairment such as slurred speech, flushed face, bloodshot- watery eyes and problems with coordination.

  • Fact: If you refuse the field sobriety test your license will be suspended

    Washington state law requires that you take a blood or breath test if you are arrested for DUI. This is a result of the implied consent law in Washington. It states that any person who operates a motor vehicle in the state of Washington is deemed to have given consent to a test or tests of that person’s breath or blood for purposes of determining alcohol concentration or the presence of any drug.

    Myth: If you drink one drink an hour, you will keep your BAC under .08

    Alcohol is absorbed from the gastrointestinal tract and into the bloodstream. The alcohol is distributed throughout the body until equilibrium is achieved (even distribution throughout the body). Healthy people metabolize alcohol at a fairly constant rate. In general, a person will eliminate one average drink of alcohol per hour. There are many charts and graphs that try to predict what a person’s blood alcohol concentration (BAC) will be after a certain number of drinks per hour. This calculation is based on many variables. While a chart can be used as a general guideline, it can’t predict a person’s blood alcohol content with absolute certainty. Many factors are involved including weight and absorption rate. For example, the less you weigh, the more you will be affected by a given amount of alcohol. Furthermore, food taken with alcohol causes a delay of alcohol absorption resulting in a decrease of alcohol absorption into the bloodstream.

  • Fact: You can be arrested if you are in a car with the engine off

    If you are impaired and have physical control of a vehicle, you can be charged with the crime of Physical Control. Being in physical control of the vehicle means that you have the ability to start and operate the vehicle. You don’t have to be in the driver’s seat or even sitting in the car. So if you have been drinking and decide to sleep it off in the backseat of the car and the keys are in the ignition or in your pocket, you can be charged with physical control. This type of charge has the exact same consequences as a DUI.

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    Mental health care in the Bureau of Prisons

    By Alan Ellis and Mark Allenbaugh

    U.S. Bureau of Prisons (BOP) policies are complex and difficult to understand—even defense lawyers find them taxing particularly so when it comes to medical and mental health issues. Clients and families are more often than not lost in the bureaucratic maze of terminology and regulations, and they turn to their lawyers for explanations.

    In earlier columns, “BOP Designations Based on Medical Need,” Criminal Justice (Fall 2008) and “BOP Healthcare: What You (and Your Clients) Need to Know,” Criminal Justice (Winter 2009), I discussed medical care in the Bureau of Prisons. This article is intended for the attorney to understand and be able to provide his clients and their families and friends information regarding mental health treatment in the BOP.

    For a number of years, the Bureau of Prisons has classified inmates based on their medical needs. There are four levels of medical care classification. Recently, the BOP has adopted mental health classifications. In addition to receiving a classification for security and healthcare, BOP inmates are now classified based on mental health care need. Similar to the four medical care levels, all inmates are assigned to one of four mental health levels.

    CARE1-MH: No Significant Mental Health Care: those who show no significant level of functional impairment associated with mental illness and demonstrate no need for regular mental health interventions; and either has no history of serious functional impairment due to mental illness or if a history of mental illness is present, have consistently demonstrated appropriate help-seeking behavior in response to any reemergence of symptoms.

    CARE2-MH: Routine Outpatient Mental Health Care or Crisis-Oriented Mental Health Care: those requiring routine outpatient mental health care on an ongoing basis; and/or brief, crisis-oriented mental health care of significant intensity; e.g., placement on suicide watch or behavioral observation status.

    CARE3-MH: Enhanced Outpatient Mental Health Care or Residential Mental Health Care: those requiring enhanced outpatient mental health care (i.e., weekly mental health interventions); or residential mental health care (i.e., placement in a residential Psychology Treatment Program).

    CARE4-MH: Inpatient Psychiatric Care: those who are gravely disabled and cannot function in general population in a CARE3-MH environment. In determining an appropriate mental health care level, an individual’s current, recent, and historical need for services is considered, along with consideration of any type of psychotropic medication required. The BOP offers a number of formal, organized psychology treatment programs with specific target populations, admission criteria, and treatment modalities. Many of these are residential programs offered only at select facilities. General psychological services and mental health crisis intervention are available throughout the BOP. Psychiatric services, including psychotropic medication, are generally coordinated through health services in conjunction with psychology services staff. Psychiatry services may be available either through contracts with a community psychiatrist, or increasingly, through telepsychiatry with a BOP psychiatrist at another location.

    When initially scoring an inmate, the assigned team utilizes a Medical Calculator to determine the screen level. If the inmate is scored as a SCRN3 or SCRN4, he/she will be referred to the Office of Medical Designations (OMDT) for further review. OMDT then decides whether the SCRN level will require further review of the available information. If the inmate comes back from OMDT as a SCRN1 or SCRN2, the latter will be referred back to Designators who will designate the inmate to an appropriate CARE1 or CARE2 facility. If the inmate is determined
    to meet the criteria for a CARE3 or CARE4 facility, OMDT will designate them.

    A provisional CARE level is assigned by the Designations and Sentence Computation Center (DSCC) based primarily on information contained in the Presentence Investigation Report. After arriving at the designated facility, the provisional CARE level is reviewed by BOP clinicians and a non-provisional CARE level is assigned. These assignments depend on the defendant’s physical, medical and mental condition, clinical resources and inmate needs and his or her ability to function daily without assistance.

    While it may vary from institution to institution and from mental health professional to mental health professional, generally speaking mental health treatment in the Bureau of Prisons is designed to enable the inmate to function within the prison system, for example, not a danger to self, staff or other inmates. Outside of the formal programs mentioned above, rarely will an inmate receive any meaningful treatment for underlying disorders such as PTSD, Major Depressive Disorder, Bi-Polar Disorder, and the like, as all treatment modalities are not offered, for example, EMDR (Eye Movement Desensitization and Reprocessing) for treatment of PTSD.

    This is regrettable. Department of Justice estimates are that one in four inmates in this country suffers from a diagnosable mental health disorder. With the Bureau’s emphasis on reducing recidivism, more attention given to the mentally ill will go a long way to achieving this result.


    Alan Ellis, a past president of the National Association of Criminal Defense Lawyers and Fulbright Award winner, is a criminal defense lawyer with offices in San Francisco and New York. Mr. Ellis has 50 years of experience as a practicing lawyer, law professor and federal law clerk. He is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, habeas corpus 2255 motions and international prisoner transfer for foreign inmates. Mr. Ellis has successfully represented federal criminal defendants and inmates throughout the United States. He is a sought-after lecturer in criminal law education programs and is widely published in the areas of federal sentencing, Bureau of Prisons matters, appeals and other post-conviction remedies, with more than 120 articles and books and 70 lectures, presentation and speaking engagements to his credit. He can be reached at
    Mark H. Allenbaugh is co-founder of Sentencing Stats, LLC (, a consulting firm focused on analysis of federal sentencing data for attorneys and their clients. He is a consultant to the Law Offices of Alan Ellis. Prior to entering private practice, he served as a staff attorney for the U.S. Sentencing Commission. He is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2nd ed., Foundation Press, 2002). He can be reached at

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