The Washington Supreme Court has held that courts may consider race and ethnicity as relevant, objective factors when determining whether a person was in custody for Miranda purposes. In State v. Wasuge, No. 103530-6 (Wash. Jan. 15, 2026), the court’s unanimous en banc opinion also addressed the admissibility of expert testimony on blood alcohol concentration thresholds in “affected by” DUI cases. If you are facing DUI charges in the Seattle area, this ruling has significant implications for how your defense attorney can challenge the circumstances of your stop and arrest.
What Did the Court Decide in Wasuge?
The court addressed two issues. First, it held that even if a toxicology expert’s testimony about the American Medical Association’s recommended 0.05 percent BAC threshold was improperly admitted in an “affected by” DUI prosecution, the error was harmless given the overwhelming evidence of impairment. Second — and more broadly significant — the court held that race and ethnicity are relevant factors that courts may objectively consider under the “totality of the circumstances” test when analyzing whether a defendant was in custody for Miranda purposes.
The defendant, Ahmed Wasuge, a Black man, was found asleep in his car blocking a lane of traffic in King County. Deputies responded to a 911 call, boxed in his vehicle with patrol cars, and began questioning him. Wasuge was charged under the “affected by” prong of Washington’s DUI statute, RCW 46.61.502(1)(c), and the corresponding physical control statute, RCW 46.61.504(1)(c). His BAC tested at 0.076 percent — below the 0.08 per se limit but above the AMA’s recommended 0.05 threshold.
The jury convicted Wasuge of the lesser included offense of physical control of a motor vehicle while under the influence. The Supreme Court affirmed.
How Does This Ruling Affect DUI Defense in Washington?
Wasuge impacts DUI defense strategy in two important ways.
The “affected by” prong and expert testimony. Washington’s DUI statute includes both a “per se” prong (BAC of 0.08 or higher) and an “affected by” prong under RCW 46.61.502(1)(c), which does not require a specific BAC level. Instead, the State must prove that the driver’s ability to operate a motor vehicle was lessened in any appreciable degree. In Wasuge, the State’s toxicology expert testified that the AMA considers individuals “potentially affected” by alcohol below 0.08 and recommends 0.05 as a more appropriate impairment threshold. The Court of Appeals found this testimony was improperly admitted as speculative and irrelevant. The Supreme Court assumed without deciding that the testimony was improper but held the error was harmless because of the strength of the remaining evidence — observations of impairment, poor field sobriety test performance, and the defendant’s own admission of drinking.
The practical takeaway for defense attorneys: when prosecutors bring “affected by” charges, expect them to introduce expert testimony suggesting impairment well below 0.08. Defense counsel should be prepared to object and seek exclusion of this testimony, particularly testimony referencing proposed legislative changes to lower Washington’s legal limit to 0.05. While the court found the error harmless in Wasuge, a case with weaker corroborating evidence could produce a different result.
Race and ethnicity in the Miranda custody determination. The court held that Washington law does not preclude courts from considering race and ethnicity when analyzing whether a defendant was in custody for Miranda purposes. The criminal defense attorneys at Blair & Kim have long recognized that a person’s experience during a law enforcement encounter is shaped by factors that include race, and this ruling validates the argument that those factors belong in the legal analysis.
The court relied on the “totality of the circumstances” framework from Berkemer v. McCarty and this court’s own precedent in State v. Escalante, which asks how a reasonable person in the suspect’s position would have understood the situation. Citing the U.S. Supreme Court’s reasoning in J.D.B. v. North Carolina — which held that a juvenile’s age is relevant to the custody inquiry — the Washington Supreme Court extended the same logic to race and ethnicity: these are objective, relevant circumstances that may affect whether a reasonable person would feel free to terminate a police encounter.
However, the court emphasized that such evidence must be “relevant and objective.” And critically, the ruling did not help Wasuge himself — the court found he was not in custody because the encounter was brief, public, and began as a community caretaking function, and Wasuge had not presented evidence of race and ethnicity as factors at his suppression hearing.
What Does “Affected By” Mean Under Washington’s DUI Law?
Under RCW 46.61.502(1)(c), a person is guilty of DUI if they drive a vehicle while “affected by” intoxicating liquor — meaning their ability to drive is lessened in any appreciable degree. This is distinct from the per se standard under RCW 46.61.502(1)(a), which requires proof of a BAC at or above 0.08.
The “affected by” prong allows prosecutors to pursue DUI charges even when a driver’s BAC is below 0.08. In Wasuge, the defendant’s BAC was 0.076 — technically below the legal limit — but the State presented evidence of impairment through officer observations, field sobriety tests, and the defendant’s own statements. Blair & Kim’s lead criminal defense attorney, Mark Blair, a former prosecutor who has handled over 15,000 criminal cases in Washington courts, understands how prosecutors build “affected by” cases and the specific defense strategies available to challenge them.
Can Race Be Raised as a Factor in a Motion to Suppress?
Yes, after Wasuge, defense attorneys in Washington can present relevant and objective evidence about how race and ethnicity affected whether a reasonable person in the defendant’s position would have felt free to end a police encounter. The court made clear that Washington’s custody inquiry has “never excluded relevant and objective factors” and that a holistic analysis necessarily includes race and ethnicity when the evidence supports it.
For defense attorneys, this means that suppression motions challenging the admissibility of statements made during police encounters should include evidence about how race may have influenced the coercive nature of the encounter. The key is presenting this evidence in an objective, factually grounded manner — the court requires that such evidence be “relevant and objective,” not speculative.
This holding aligns with a broader trend in Washington courts toward acknowledging the role that race plays in interactions with law enforcement. Defense counsel should build a factual record at the suppression hearing that includes race-related evidence when it is relevant to the circumstances of the encounter.
Does This Ruling Apply to Cases Already in Progress?
Wasuge is a published, unanimous en banc decision from the Washington Supreme Court — the highest court in the state. Unlike the unpublished Court of Appeals opinion in Thiess, this is binding precedent on all Washington trial and appellate courts effective immediately. For defendants with pending DUI or criminal cases in King County Superior Court, Pierce County Superior Court, or any Washington court, Wasuge can be cited in suppression motions and trial proceedings right now.
The harmless error analysis also applies the test recently articulated in State v. Magana-Arevalo, No. 103586-1 (Wash. Jan. 15, 2026), which the court issued the same day. That companion case established the framework for evaluating whether a constitutional error is harmless beyond a reasonable doubt. Defense attorneys should review both opinions together.
Talk to a Seattle DUI Defense Attorney About Your Case
Wasuge reinforces two critical principles: prosecutors will aggressively use expert testimony to support “affected by” DUI charges even when BAC is below 0.08, and the circumstances of a police encounter — including the defendant’s race — are part of the legal analysis for Miranda custody. Blair & Kim’s criminal defense team brings a former prosecutor’s perspective to DUI defense across King County, Pierce County, and Snohomish County courts, with over 15,000 cases of experience understanding how these issues play out at trial.
To discuss your DUI charge or criminal case with an experienced Seattle defense attorney, call Blair & Kim at (206) 622-6562 or contact the firm online.