Revised Code of Washington
Wash. Rev. Code § 46.61.504 (2026)
✓ current as of May 2026
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(1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:
(a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
(b) The person has, within two hours after being in actual physical control of a vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or
(c) While the person is under the influence of or affected by intoxicating liquor or any drug; or
(d) While the person is under the combined influence of or affected by intoxicating liquor and any drug.
(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does not constitute a defense against any charge of violating this section. No person may be convicted under this section and it is an affirmative defense to any action pursuant to RCW 46.20.308 to suspend, revoke, or deny the privilege to drive if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.
(3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after being in such control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of cannabis after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after being in control of the vehicle. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(4)(a) Analyses of blood or breath samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(c) or (d) of this section.
(b) Analyses of blood samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in control of the vehicle, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by cannabis in violation of subsection (1)(c) or (d) of this section.
(5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has three or more prior offenses within ten years as defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a);
(ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b);
(iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.502(6).
[ 2022 c 16 s 42; 2017 c 335 s 2; 2015 2nd sp.s. c 3 s 24; 2013 c 3 s 35 (Initiative Measure No. 502, approved November 6, 2012); 2011 c 293 s 3; 2008 c 282 s 21; 2006 c 73 s 2; 1998 c 213 s 5; 1994 c 275 s 3; 1993 c 328 s 2; 1987 c 373 s 3; 1986 c 153 s 3; 1979 ex.s. c 176 s 2.]
Notes:
Rules of court: Bail in criminal traffic offense cases—Mandatory appearance—CrRLJ 3.2.
Intent—Finding—2022 c 16: See note following RCW 69.50.101.
Finding—Intent—2015 2nd sp.s. c 3: See note following RCW 10.21.055.
Intent—2013 c 3 (Initiative Measure No. 502): See note following RCW 69.50.101.
Effective date—2011 c 293 ss 1-9: See note following RCW 46.20.385.
Effective date—2006 c 73: See note following RCW 46.61.502.
Effective date—1998 c 213: See note following RCW 46.20.308.
Short title—Effective date—1994 c 275: See notes following RCW 46.04.015.
Legislative finding, purpose—Severability—1987 c 373: See notes following RCW 46.61.502.
Severability—1979 ex.s. c 176: See note following RCW 46.61.502.
Criminal history and driving record: RCW 46.61.513.
(1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:
(a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
(b) The person has, within two hours after being in actual physical control of a vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or
(c) While the person is under the influence of or affected by intoxicating liquor or any drug; or
(d) While the person is under the combined influence of or affected by intoxicating liquor and any drug.
(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does not constitute a defense against any charge of violating this section. No person may be convicted under this section and it is an affirmative defense to any action pursuant to RCW 46.20.308 to suspend, revoke, or deny the privilege to drive if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.
(3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after being in such control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of cannabis after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after being in control of the vehicle. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(4)(a) Analyses of blood or breath samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(c) or (d) of this section.
(b) Analyses of blood samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in control of the vehicle, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by cannabis in violation of subsection (1)(c) or (d) of this section.
(5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has three or more prior offenses within 15 years as defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a);
(ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b);
(iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.502(6).
[ 2024 c 306 s 32; 2022 c 16 s 42; 2017 c 335 s 2; 2015 2nd sp.s. c 3 s 24; 2013 c 3 s 35 (Initiative Measure No. 502, approved November 6, 2012); 2011 c 293 s 3; 2008 c 282 s 21; 2006 c 73 s 2; 1998 c 213 s 5; 1994 c 275 s 3; 1993 c 328 s 2; 1987 c 373 s 3; 1986 c 153 s 3; 1979 ex.s. c 176 s 2.]
Notes:
Rules of court: Bail in criminal traffic offense cases—Mandatory appearance—CrRLJ 3.2.
Effective date—2024 c 306: See note following RCW 9.94A.661.
Intent—Finding—2022 c 16: See note following RCW 69.50.101.
Finding—Intent—2015 2nd sp.s. c 3: See note following RCW 10.21.055.
Intent—2013 c 3 (Initiative Measure No. 502): See note following RCW 69.50.101.
Effective date—2011 c 293 ss 1-9: See note following RCW 46.20.385.
Effective date—2006 c 73: See note following RCW 46.61.502.
Effective date—1998 c 213: See note following RCW 46.20.308.
Short title—Effective date—1994 c 275: See notes following RCW 46.04.015.
Legislative finding, purpose—Severability—1987 c 373: See notes following RCW 46.61.502.
Severability—1979 ex.s. c 176: See note following RCW 46.61.502.
Criminal history and driving record: RCW 46.61.513.
Notes of Decisions
Cited in 119
cases (18 in the last 5 years), 1981–2026 · leading case: State v. Votava, 66 P.3d 1050 (Wash. 2003).
State v. Votava, 66 P.3d 1050 (Wash. 2003). “Because it had no evidence that Votava had driven his car, the State amended the charge to actual physical control of a vehicle under the influence of alcohol under RCW 46.61.504. PROCECURAL HISTORY At trial before the Spokane County District Court, Votava requested that the…”
State v. Votava, 149 Wash. 2d 178 (Wash. 2003). “Because it had no evidence that Votava had driven his car, the State amended the charge to actual physical control of a vehicle under the influence of alcohol under RCW 46.61.504. PROCEDURAL HISTORY At trial before the Spokane County District Court, Votava requested that the…”
State v. Reid, 988 P.2d 1038 (Wash. Ct. App. 1999). “RCW 46.61.504. 3 Under these circumstances, it was not unreasonable for Delaney to ask Reid to take a field sobriety test.”
State v. McClendon, 935 P.2d 1334 (Wash. 1997). “502 [6] or RCW 46.61.504 [7] who take a test showing a blood alcohol concentration of .”
State v. McClendon, 131 Wash. 2d 853 (Wash. 1997). “502 6 or RCW 46.61.504 7 who take a test showing a blood alcohol concentration of .”
State v. Day, 638 P.2d 546 (Wash. 1981). “In its footnote 4, the majority also cites RCW 46.61.504, while commendably observing that it is not persuasive.”
State v. Smelter, 674 P.2d 690 (Wash. Ct. App. 1984). “The matter was heard by the Superior Court and the judgment and sentence affirmed. Discretionary review has been granted to determine whether a motor vehicle must be "operable" in order for an individual to be found guilty of violating RCW 46.”
In Re the Pers. Restraint of Williams, 759 P.2d 436 (Wash. 1988). “020(5)); or "(b) Any federal, out-of-state, county, or municipal conviction for an offense that under the laws of this state would be classified as a serious traffic offense under (a) of this subsection.”
State v. Nguyen, 197 P.3d 673 (Wash. 2008). “At her bench trial, the State argued that if the court did not find her guilty of DUI, it should convict her of the "lesser included" offense of being in physical control of a vehicle while under the influence of intoxicating liquor or any drug (hereafter physical control while…”
State v. Huyen Bich Nguyen, 165 Wash. 2d 428 (Wash. 2008). “At her bench trial, the State argued that if the court did not find her guilty of DUI, it should convict her of the “lesser included” offense of being in physical control of a vehicle while under the influence of intoxicating liquor or any drug (hereafter physical control while…”
State v. Brayman, 751 P.2d 294 (Wash. 1988). “502 (defining DWI), RCW 46.61.504 (defining actual physical control of vehicle while under the influence of intoxicants), and RCW 46.”
All Around Underground, Inc. v. Washington State Patrol, 148 Wash. 2d 145 (Wash. 2002). “502 Driving under the influence, RCW 46.61.504 Physical control of vehicle under the influence, RCW 46.”
— Wash. Rev. Code § 46.61.504(1) — 3 cases
State v. Daily, 265 P.3d 945 (Wash. Ct. App. 2011).
State Of Washington v. Eliud Wambugu (Wash. Ct. App. 2021).
City of Spokane v. Emma Rose Ramos, 559 P.3d 1045 (Wash. Ct. App. 2024).
— Wash. Rev. Code § 46.61.504(1)(a) — 2 cases
Faust v. Albertson, 222 P.3d 1208 (Wash. 2009).
State v. McClendon, 935 P.2d 1334 (Wash. 1997). “502 [6] or RCW 46.61.504 [7] who take a test showing a blood alcohol concentration of .”
— Wash. Rev. Code § 46.61.504(1)(c) — 5 cases
State v. Wasuge (Wash. 2026).
State Of Washington v. Eric Lamar Jackson (Wash. Ct. App. 2018).
State Of Washington, V. Abdulkadir Osman Gargar (Wash. Ct. App. 2023).
State Of Washington, V. Yusuf Mohammed Abdullahi (Wash. Ct. App. 2025).
City of Yakima v. Julio Mendoza Godoy (Wash. Ct. App. 2013).
— Wash. Rev. Code § 46.61.504(2) — 21 cases
State v. Votava, 66 P.3d 1050 (Wash. 2003). “Because it had no evidence that Votava had driven his car, the State amended the charge to actual physical control of a vehicle under the influence of alcohol under RCW 46.61.504. PROCECURAL HISTORY At trial before the Spokane County District Court, Votava requested that the…”
State v. Votava, 149 Wash. 2d 178 (Wash. 2003). “Because it had no evidence that Votava had driven his car, the State amended the charge to actual physical control of a vehicle under the influence of alcohol under RCW 46.61.504. PROCEDURAL HISTORY At trial before the Spokane County District Court, Votava requested that the…”
State v. Reid, 988 P.2d 1038 (Wash. Ct. App. 1999). “RCW 46.61.504. 3 Under these circumstances, it was not unreasonable for Delaney to ask Reid to take a field sobriety test.”
State v. Nguyen, 197 P.3d 673 (Wash. 2008). “At her bench trial, the State argued that if the court did not find her guilty of DUI, it should convict her of the "lesser included" offense of being in physical control of a vehicle while under the influence of intoxicating liquor or any drug (hereafter physical control while…”
City of Yakima v. Godoy, 305 P.3d 1100 (Wash. Ct. App. 2013).
— Wash. Rev. Code § 46.61.504(2014) — 1 case
Earl Soushek v. Dep't Of Licensing (Wash. Ct. App. 2017).
— Wash. Rev. Code § 46.61.504(3) — 2 cases
State v. Keller, 545 P.3d 790 (Wash. 2024).
State v. Hazzard, 716 P.2d 977 (Wash. Ct. App. 1986).
— Wash. Rev. Code § 46.61.504(3)(a) — 1 case
State of Washington v. Carlos Negrete, Jr. (Wash. Ct. App. 2018).
— Wash. Rev. Code § 46.61.504(6) — 31 cases
State v. Sandholm, 364 P.3d 87 (Wash. 2015).
State v. Hender, 324 P.3d 780 (Wash. Ct. App. 2014).
State v. McAninch, 358 P.3d 448 (Wash. Ct. App. 2015).
State of Washington v. Jose Luis Sosa, 198 Wash. App. 176 (Wash. Ct. App. 2017).
State v. Morales, 278 P.3d 668 (Wash. Ct. App. 2012).
— Wash. Rev. Code § 46.61.504(l)(a) — 1 case
Faust v. Albertson, 222 P.3d 1208 (Wash. 2009).
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