duistatelaws.com RCW 46.61.502: Washington's DUI statute, subsection by subsection
RCW 46.61.502 is Washington’s DUI statute. It sets four ways to commit the offense, two of them measured within two hours after driving, and makes the offense a gross misdemeanor or a class B felony. The punishment is in RCW 46.61.5055. This page goes through both, with the physical control version beside them.
Key takeaways
- Subsection (1) has four limbs: 0.08 alcohol within two hours, 5.00 THC within two hours, under the influence of or affected by liquor, cannabis or a drug, or a combination.
- A violation is a gross misdemeanor under subsection (5), and a class B felony under subsection (6) with three or more prior offenses within 15 years or a prior impaired vehicular homicide or assault.
- No prior offense in seven years and under 0.15: 24 consecutive hours to 364 days and a fine of $350 to $5,000, under RCW 46.61.5055(1)(a).
- A test taken more than two hours after driving can still be used as evidence, and any reading above 0.00 as evidence of being affected, under subsection (4).
- Section 46.61.504 is the physical control version, with a defense for moving the vehicle safely off the roadway before being pursued.
What RCW 46.61.502 does
RCW 46.61.502 defines driving under the influence in Washington and says how serious the offense is; it does not set the jail terms and fines. Those are in RCW 46.61.5055, the penalty schedule, which counts “prior offenses” over seven years for sentencing and over fifteen for the felony. Its companion, RCW 46.61.504, is the parallel offense for being in actual physical control of a vehicle; its felony under subsection (6) is class C, not class B.
Subsection (1): four ways to commit the offense
| Paragraph | What it requires | Number needed? |
|---|---|---|
| (1)(a) | An alcohol concentration of 0.08 or higher within two hours after driving, shown by a breath or blood analysis made under RCW 46.61.506 | Yes |
| (1)(b) | A THC concentration of 5.00 or higher within two hours after driving, shown by a blood analysis made under RCW 46.61.506 | Yes |
| (1)(c) | Driving “while the person is under the influence of or affected by intoxicating liquor, cannabis, or any drug” | No |
| (1)(d) | Driving under the combined influence of or affected by intoxicating liquor, cannabis and any drug | No |
Subsection (2) closes one argument in advance: that a person is or has been entitled to use a drug under Washington law “shall not constitute a defense”.
The two-hour window, and tests taken later
The two numeric limbs are measured within two hours after driving. Subsection (4) says a breath or blood analysis taken more than two hours after driving may still be used as evidence that the person was at 0.08 or more within the two hours, and that any analysis showing an alcohol concentration above 0.00 may be used as evidence for the under-the-influence limbs, (1)(c) and (d). Subsection (4)(b) sets a parallel rule for THC, for blood samples only.
The drinking-after-driving defense
Subsection (3) gives an affirmative defense to the numeric limbs: that the defendant consumed enough alcohol, or cannabis, after driving and before the test to bring the level to 0.08 or more, or THC to 5.00 or more, within two hours. The defendant must prove it by a preponderance of the evidence, and the court will not admit it unless the prosecution was told before the omnibus or pretrial hearing.
Subsections (5) and (6): gross misdemeanor or felony
A violation is a gross misdemeanor, except where subsection (6) makes it a class B felony, punishable under chapter 9.94A RCW (chapter 13.40 RCW for a juvenile). That happens if the person:
- has three or more prior offenses within 15 years, as RCW 46.61.5055 defines a prior offense; or
- has ever previously been convicted of vehicular homicide or vehicular assault while under the influence — RCW 46.61.520(1)(a) and 46.61.522(1)(b) — of a comparable out-of-state offense, or of a felony under this subsection or RCW 46.61.504(6).
The penalty schedule, RCW 46.61.5055
The schedule sets mandatory minimums by the number of prior offenses within seven years, and splits each step by the test: an alcohol concentration under 0.15 (a tier that also covers a case with no test result for a reason other than refusal), or one of at least 0.15 or a refusal to take a test offered under RCW 46.20.308. The license column is the period the schedule sets after a conviction, with day-for-day credit for any suspension already served under RCW 46.20.3101 for the same incident, under subsection (9)(b).
| Record and test | Level | Jail | Fine | License |
|---|---|---|---|---|
| First, under 0.15 | Gross misdemeanor RCW 46.61.5055(1)(a) | 24 consecutive hours to 364 days or, in place of the minimum, at least 15 days of electronic home monitoring or a 90-day period of 24/7 sobriety monitoring Ignition interlock ordered by the court | $350 to $5,000 | 90 days, or as little as 2 days with an evaluation and 24/7 sobriety monitoring RCW 46.61.5055(9)(a)(i)(A) |
| First, 0.15+/refusal | Gross misdemeanor RCW 46.61.5055(1)(b) | 48 consecutive hours to 364 days or, in place of the minimum, at least 30 days of electronic home monitoring or a 120-day period of 24/7 sobriety monitoring Ignition interlock ordered by the court | $500 to $5,000 | 1 year, or as little as 4 days with an evaluation and 24/7 monitoring; 2 years after a refusal RCW 46.61.5055(9)(a)(ii)(A), (iii)(A) |
| Second within 7 years, under 0.15 | Gross misdemeanor RCW 46.61.5055(2)(a) | 30 days to 364 days plus 60 days of electronic home monitoring Expanded substance use disorder assessment | $500 to $5,000 | 2 years, or at least 1 year with an evaluation and 24/7 monitoring RCW 46.61.5055(9)(a)(i)(B) |
| Second within 7 years, 0.15+/refusal | Gross misdemeanor RCW 46.61.5055(2)(b) | 45 days to 364 days plus 90 days of electronic home monitoring Expanded substance use disorder assessment | $750 to $5,000 | 900 days; 3 years after a refusal RCW 46.61.5055(9)(a)(ii)(B), (iii)(B) |
| Third within 7 years, under 0.15 | Gross misdemeanor RCW 46.61.5055(3)(a) | 90 days to 364 days plus 120 days of electronic home monitoring Six months of 24/7 sobriety monitoring where available | $1,000 to $5,000 | 3 years RCW 46.61.5055(9)(a)(i)(C) |
| Third within 7 years, 0.15+/refusal | Gross misdemeanor RCW 46.61.5055(3)(b) | 120 days to 364 days plus 150 days of electronic home monitoring Six months of 24/7 sobriety monitoring where available | $1,500 to $5,000 | 4 years RCW 46.61.5055(9)(a)(ii)(C), (iii)(C) |
| Three or more priors in 15 years | Class B felony RCW 46.61.502(6) | set by the felony sentencing provisions punished under chapter 9.94A RCW Also a felony after any prior impaired vehicular homicide or assault | set by the felony sentencing provisions | set by the priors within 7 years, as above RCW 46.61.5055(9)(a) |
For a first offense under 0.15, the court may order, in place of the 24-hour minimum, not less than 15 days of electronic home monitoring or 90 days of 24/7 sobriety program monitoring, and the offender pays for the electronic monitoring. $350 of the fine may not be suspended unless the court finds the offender indigent.
RCW 46.61.504: actual physical control
Section 46.61.504 sets the same four kinds of limb for a person who has actual physical control of a vehicle rather than driving it, with the same two-hour limits, the same entitlement rule and the same drinking-after defense. It adds one of its own: no one may be convicted under it — and it is an affirmative defense to a license action under RCW 46.20.308 — if, before being pursued by a law enforcement officer, the person moved the vehicle safely off the roadway. Its felony, on the same triggers, is class C under RCW 46.61.504(6).
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Common questions
What is RCW 46.61.502?
It is Washington's DUI statute. A person is guilty if they drive within the state with an alcohol concentration of 0.08 or higher, or a THC concentration of 5.00 or higher, within two hours after driving, or while under the influence of or affected by intoxicating liquor, cannabis or any drug, alone or combined. The penalties are in a separate section, RCW 46.61.5055.
What is the penalty for a first DUI in Washington?
With no prior offense in seven years and a reading under 0.15, RCW 46.61.5055(1)(a) sets imprisonment of not less than 24 consecutive hours nor more than 364 days — or, at the court's discretion and instead of the 24-hour minimum, at least 15 days of electronic home monitoring or a 90-day period of 24/7 sobriety monitoring — and a fine of $350 to $5,000. The same tier applies where there is no test result for a reason other than refusal.
Is DUI a felony in Washington?
Not unless subsection (6) applies: subsection (5) makes it a gross misdemeanor. Subsection (6) makes it a class B felony if the person has three or more prior offenses within 15 years as RCW 46.61.5055 defines them, or has ever been convicted of vehicular homicide or vehicular assault while under the influence, a comparable out-of-state offense, or a felony DUI or physical control. The physical control offense in RCW 46.61.504(6) is a class C felony on the same triggers.
What is the THC limit for driving in Washington?
Subsection (1)(b): a THC concentration of 5.00 or higher within two hours after driving, shown by a blood analysis made under RCW 46.61.506. A person's lawful entitlement to use a drug is not a defense, under subsection (2).
What is the difference between RCW 46.61.502 and 46.61.504?
Section 46.61.504 is the parallel offense for being in actual physical control of a vehicle rather than driving it, with the same two-hour limits. Two differences: its felony under subsection (6) is class C, not class B, and no one may be convicted under it if, before being pursued by a law enforcement officer, the person moved the vehicle safely off the roadway.
What is the affirmative defense in RCW 46.61.502(3)?
That the driver drank, or used cannabis, after driving and before the test, enough to bring the level to 0.08 or more, or a THC concentration of 5.00 or more, within two hours. The defendant must prove it by a preponderance of the evidence and must notify the prosecution before the omnibus or pretrial hearing.
Related
- Washington DUI law — the 7-day hearing request, the license rules and the interlock
- Seattle · Tacoma · Bellevue · Bellingham — where a case is heard
- Can a DUI be expunged? — why RCW 9.96.060 will not vacate a conviction under this section
- Florida 316.193 · Vehicle Code 23152 · A.R.S. 28-1381 — the same statute in other states
Sources
- RCW 46.61.502(1)–(6) — read in force 2026
- RCW 46.61.5055(1)–(4), (9), (14) — read in force 2026
- RCW 46.61.504(1)–(3), (6) — read in force 2026
Statute text read on app.leg.wa.gov on November 2, 2026. This page explains what the section says; it is not legal advice about any case.
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