IMPORTANT: Answer as many questions as you can while your memory of the events is still fresh. The more detailed you are, the better I can advise you. All submission are reviewed and someone from my office will respond, usually within a couple of hours but always within 24 hours, to schedule your free consultation with Snohomish County DUI attorney Scott W. Lawrence. If you are inquiring about someone currently in the custody of police, or another emergency, call (425) 488- 8481 for immediate assistance.

NOTE: You have 20 days to request a hearing from DOL regarding your DUI arrest. It is important to consult a DUI attorney early to preserve your rights with DOL and the courts. If you have an urgent question, please feel free to call Snohomish County DUI attorney Scott W. Lawrence at (425) 488-8481.

Is it legal to possess marijuana for medical use in Washington?

Washington’s medical marijuana law is codified in the Revised Code of Washington Chapter 69.51A.  Washington residents who have a qualifiying medical condition, and their designated caregivers, may recieve approval from a Physician or Osteopathy for the use medical marijuana.

What kind of documentation do I need?

Washington law requires you to have a statement signed by a physician stating that, in the physician’s professional opinion, you may benefit from the medical use of marijuana.  You must also have valid picture ID on you to show that you are the person named in the documents.

What does a valid medical marijuana “prescription” do? 

• The medical marijuana law provides an affirmative defense against manufacture (growing) and possession charges brought under Washington law.  This means that a qualifying patient or designated caregiver may use a valid “prescription” for medical marijuana to defend against a legal action taken under Washington law.  The document from your doctor must be issued prior to any possession of marijuana and must not be expired.   To be able to assert this defense you must (1) meet all the criteria of a qualifying patient or designated provider (2) possess no more than necessary for the patient’s personal, medical use and (3) present your prescription to an officer upon request (you should carry your medical marijuana documents on you at all times).
• A valid ”prescription” allows for the possession of up to a 60-day supply of marijuana.

What doesn’t a medical marijauna “prescription” do?

• A valid prescrition does not allow anyone to buy, sell or distribute marijuana. 
• A valid prescrition does not allow you to use marijuana in public or possess it in a way that it is displayed to the public.
• A valid prescrition does not legalize possession or give you an affirmative defense under federal law.  Current guidlines for federal prosecutors direct them to take appropriate medical use into consideration when deciding whether to charge marijuana-related offenses.  This directive does not change federal law and is subject to change at any time.  Thus, even if you have a perfectly valid defense against a Washington possession charge you can still be charged and convicted in federal court.
• It does not allow for possession in other states.  While some states may recogonize out-of-state prescriptions, you should always check with a criminal defense attorney that practices law in that state, first.  Washington does not recognize doctor recommendations, ID cards, or other documentation from other states.  You should never transport a controlled substance across state lines, regardless of any documentation you may have, as this is a violation of federal law.

How much marijuana is a “60-day supply?”

The Washington Administrative Code 246-75-010 defines a 60-day supply of marijuana as 24 ounces and 15 plants.  Washington’s medical marijuna law does allows for a qualifying patient to exceed these limits if he or she can prove medical need.  You should consult a criminal defense attorney before making the decision to possess a greater amount than that defined as a 60-day supply. 

How can I obtain a medical marijuana prescription?

You must be a resident of Washington and diagnosed by a Physician or Oestopath (licensed in Washington under RCW 18.71 or 18.57) to have one of the “terminal or debilitating medical condition” listed in the statute to be a qualifying patient.  If you meet all of the criteria ountlined in the statute your Physician can provide you with the proper documents. 

How do I become a designated provider?

A designated provider must be at least 18 years old and must be designated in writing by the qualifying patient.  A designated provider can only be a provider for one patient at any one time.

What do I do if I have been charged with possession of marijuna?

Everett Criminal Defense Attorney Scott W. Lawrence has years of experience fighting possession of marijuana and marijuana DUI charges. Call (425) 488-8481 now to schedule a free consultation with a proven Everett criminal defense attorney.

Many people believe that if they are arrested and not “read their rights,” they can escape punishment. Not true. But if the police fail to read a suspect his or her rights, the prosecutor can’t use anything the suspect says as evidence against the suspect at trial.

Miranda Warnings

Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), a defendant’s rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:

• You have the right to remain silent.
• If you do say anything, what you say can be used against you in a court of law.
• You have the right to consult with a lawyer and have that lawyer present during any questioning.
• If you cannot afford a lawyer, one will be appointed for you if you so desire.
• If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)

When the Miranda Warning Is Required

It doesn’t matter whether an interrogation occurs in a jail, at the scene of a crime, on a busy downtown street, or the middle of an open field: If a person is in custody (deprived of his or her freedom of action in any significant way), the police must give a Miranda warning if they want to question the suspect and use the suspect’s answers as evidence at trial.

If a person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police stop someone on the street to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning.

Pre-Arrest Questioning

People are often surprised to learn that if a person hasn’t yet been arrested, the police may question the person and use the answers in court without first providing the Miranda warning.

Responding to Questions Before an Arrest

Does a person have to respond to police questions if he or she hasn’t been arrested? Generally, no. A police officer generally cannot arrest a person simply for failure to respond to questions.

The Fifth Amendment to the U.S. Constitution guarantees the “right of silence.” This means that unless a police officer has “probable cause” to make an arrest or a “reasonable suspicion” to conduct a “stop and frisk,” a person approached by the police officer has the legal right to refuse to answer questions. Indeed, a person who has reason to believe that he or she is a potential suspect should politely decline to answer questions, at least until after consulting an attorney.

However, there are several exceptions to this rule.

Loitering. The “right to silence” rule may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person’s activities. If the person fails to comply, the officer can arrest the person for loitering.

Traffic stops. Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. An officer has the right to demand personal identification — usually a driver’s license and the vehicle registration. A driver’s refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.

Stop and Frisk Searches

A “stop and frisk” is when a police officer stops a person to question them and, for self-protection only, carries out a limited pat-down search for weapons (a “frisk”).

A police officer may stop and frisk a person if the officer has a “reasonable suspicion” that the person is engaged in criminal activity. This is an easier test for a police officer to meet than the “probable cause” that is required to make an arrest. In one recent U.S. Supreme Court case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant.

When frisking a person for weapons, police may feel a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person’s clothing. And, if a search produces an illegal substance, it may result in an arrest.

Post-Arrest Questioning

The almost-universal advice of defense attorneys is to keep the old mouth tightly shut when being questioned after an arrest, at least until after consulting an attorney. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt.

Consequences of Failure to Provide Miranda Warning

Without a Miranda warning, nothing a person says in response to a custodial questioning can be used as evidence against the person at his or her trial. In addition, under the “fruit of the poisonous tree” rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial.

For example, if a suspect tells the police where a weapon is hidden and it turns out that the suspect provided this information in response to improper questioning, the police will not be able to use the weapon as evidence — unless the police can prove that they would have found the weapon without the suspect’s statements.

When Police Come Down Too Hard

Information that is voluntarily disclosed to a police officer (after the person has been properly warned) is generally admissible at trial. The key word is “voluntary.” Police officers are not allowed to use physical force or psychological coercion to get a suspect to talk to them. In addition, any evidence that the police obtain as the result of a coerced statement is equally inadmissible. 

To learn more about Miranda, and to get answers to your questions about every part of a criminal case, read The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).

reprinted with permission from Nolo.com.

Eligibility for Juvenile Court

There is no set age by which a child is accountable in the juvenile court system. In general, a child under seven years of age is considered too young, while a child 14 or older is considered accountable for their crimes, either in juvenile or adult court. Children between the ages of seven and 14 occupy a middle ground, and prosecutors must demonstrate that the accused child is capable of forming the guilty mind required to be accountable in the juvenile court system. 

Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about “getting tough on crime,” the conflicting opinions on how to deal with minors accused of crimes are greater still. 

Not every young person who commits an offense ends up in juvenile court. A police officer who suspects that a minor has committed a crime may: 

• detain and warn the minor against further violations, and then let the minor go free
• detain and warn the minor against further violations, but hold the minor until a parent or guardian comes for the minor, or
• place the minor in custody and refer the case to a juvenile court.

Informal v. Formal Charges

If the police refer a case to the juvenile court, a prosecutor or a juvenile court “intake” officer (often a probation officer) must then decide whether to: 

• dismiss the matter
• handle the matter informally, or
• “petition” the matter by filing formal charges.

In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. (For more information, see Avoiding Formal Charges, below.) 

Informal Charges

A decision to proceed informally often means that the minor must appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or after-school classes, repay the victim for damaged property or pay a fine, perform community service work, or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, the officer may also initiate proceedings to remove the minor from the custody of his or her parents or guardians. 

Formal Charges

If the intake officer decides to proceed formally, the officer files a petition and the case is placed on the juvenile court’s calendar. At that point juvenile cases typically flow through the juvenile justice system in this manner: 

• The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or, if the crime or the juvenile’s personal characteristics indicate that the case should be handled in regular court, the judge sets the case for a “fitness hearing.”
• At the hearing, the judge will determine whether the minor should be tried as a juvenile or as an adult in regular court. As younger and younger minors commit ever more violent crimes, these fitness hearings are becoming more common.
• If the case remains in juvenile court, the minor either enters into a plea agreement or faces trial (often called an “adjudication”).
• If, after trial, the juvenile court judge “sustains the petition” (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition).
• Post-disposition hearings may occur. For example, a judge’s disposition order may require a minor to appear in court periodically so that the judge can monitor the minor’s behavior.

Avoiding Formal Charges in Juvenile Court

Intake officers consider a list of factors, both official and “off the record,” when deciding whether to formally charge a juvenile with a crime. First, the official list: 

• The severity of the offense. A serious crime is more likely to result in the filing of a petition than a less serious crime.
• The minor’s age. Petitions are more likely to be filed in cases involving older children.
• The minor’s past record. Formal charges are more likely when a minor has been previously involved with juvenile court.
• The strength of the evidence that the minor committed a crime. Stronger evidence leads to a greater likelihood of formal charges.
• The minor’s gender. Formal charges are more likely to be filed against boys than against girls.
• The minor’s social history. Petitions are more likely to be filed when children have a history of problems at home or at school.
• The parent or guardian’s apparent ability to control the minor. The greater the lack of parental control, the more likely the intake officer is to file a petition.

In addition to these official reasons, the filing decisions of many intake officers cannot help but be swayed by a number of subjective factors. These may include: 

• The minor’s attitude. Formal proceedings are less likely when a child shows remorse for committing a crime.
• The minor’s manner of dress. If the young person dresses well, is neatly groomed, and is polite, intake personnel are more likely to handle the case informally.
• Whether the minor has family or community support. The more support the young person has, the more likely the intake officer is to deal with the case informally.
• Whether the minor has an attorney. Disposing of a case informally may be less likely when a child has a lawyer.
• Ethnicity and socio-economic status. Statistics suggest (though few, if any, intake officers would admit) that the ethnicity and socio-economic status of minors often affects how aggressively their cases are handled.

For information on criminal cases, from start to finish, get The Criminal Law Handbook: Know Your Rights, Survive the System, by attorneys Paul Bergman and Sara J. Berman-Barrett (Nolo). 

Arrest Reports and Criminal Charges

After an arrest, the arrest report is sent to a prosecutor, whose job it is to initiate and prosecute criminal cases. Arrest reports summarize the events leading up to arrests and provide numerous other details, such as dates, time, location, and weather conditions of the crime, and witnesses’ names and addresses, if that information is available. 

The prosecutor will either: 

• decide that the case should be charged (as a felony or a misdemeanor), and file a complaint with the trial court
• decide that the case should be charged as a felony and bring evidence before citizens serving as grand jurors, who will decide what charges, if any, to file, or
• decide that the matter should not be pursued.

Prosecutors can file charges on all crimes for which the police arrested a suspect. Or, they can file charges that are more or less severe than the charges leveled by the police.  

Charges Must Be Filed Quickly

For suspects who are in custody, speedy trial laws typically require prosecutors to file charges, if at all, within 72 hours of arrest. Some jurisdictions require prosecutors to charge a suspect even sooner. For example, California requires that charges be filed within 48 hours. 

However, prosecutors’ initial charges are subject to change. For example, a prosecutor may not make a final decision on what charges to file until after a preliminary hearing, which may take place more than a month after arrest. 

How a Prosecutor Decides Whether to File Charges

A prosecutor’s decision to file charges may be influenced by factors beyond the specific facts of the incident described in the police report. 

Policies on certain crimes. Some prosecution offices adopt policies on certain types of crimes, often in response to community pressure, and these policies may dictate the prosecutor’s approach in any given case. For example, an office may decide that arrests for driving under the influence of drugs or alcohol will always be taken to trial and not “plea bargained” down to a lesser offense. 

Political ambition. Prosecutors may also be influenced by their own political ambitions. Most prosecutors are elected officials, and many of them view their position as a stepping-stone to higher office. Their decisions on charges are often affected by public opinion or important support groups. For example, a prosecutor may file charges on every shoplifting case, no matter how weak, to curry favor with local store owners who want to get the word out that shoplifters will be prosecuted. 

What justice requires. Finally, some decisions are influenced by the prosecutor’s sense of what justice requires in the case before her. Prosecutors are supposed to both enforce the law and “do justice.” Doing justice means that a prosecutor occasionally decides not to prosecute a case (or files less severe charges) because the interests of justice require it, even if the facts of the case might support a conviction. For example, if an otherwise law-abiding person makes a one-time, foolish mistake, a prosecutor may decide that it would not serve any purpose to spend time and money prosecuting this person, especially when the chances that the person will re-offend are nil. 

The Role of a Grand Jury

If a felony is involved, prosecutors sometimes leave it to grand juries to decide whether charges should be filed. Grand juries are similar to regular trial juries (called “petit juries”) in that they are made up of randomly selected individuals. The grand jurors listen to evidence and decide whether charges should be brought against an individual (that is, they decide whether to “indict” someone). 

However, unlike petit juries, which only sit on one case, grand juries involve a time commitment that typically lasts between 6 and 18 months. The grand jurors may address many cases in the course of their service. In addition, these crucial differences exist: 

• Petit jurors decide whether defendants are guilty. Grand juries decide whether there is enough evidence to warrant a trial.
• Grand juries meet in secret proceedings. Petit juries serve during public trials.
• Grand juries have 15-23 people. By contrast, a petit jury usually consists of between 6 and 12 people.
• Petit juries generally have to be unanimous to convict a defendant. Grand juries need not be unanimous to indict. In the federal system, for example, an indictment may be returned if 12 or more jurors agree to indict.

How a Grand Jury Works

When a prosecutor brings a case to a grand jury, he presents the jurors with a “bill” (the charges) and introduces evidence — usually the minimum necessary, in the prosecutor’s opinion — to secure an indictment. The proceedings are secret; it is standard practice to call witnesses to testify against the suspect without the suspect or the suspect’s lawyer present. Indicted suspects can sometimes later obtain transcripts of grand jury proceedings, however — and this is a big reason why prosecutors like to keep the evidence to the minimum. 

Although the prosecutor can also call the suspect as a witness, this is not typically done. When suspects are called, they often refuse to testify by invoking their privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.  

If the grand jury decides to indict, it returns what is called a “true bill”. If not, the grand jury returns a “no-bill”. But even if the grand jury returns a no-bill, the prosecutor may eventually file charges against a suspect. Prosecutors can return to the same grand jury with more evidence, present the same evidence to a second grand jury, or (in jurisdictions that give prosecutors a choice) bypass the grand jury altogether and file a criminal complaint. 

Preliminary Hearings

If the prosecutor decides to file a complaint rather than present the case to a grand jury, and the case is a felony, the defendant is entitled to a preliminary hearing at which the prosecutor must show that the state has enough evidence of the crime to warrant a trial. 

However, if the case proceeds by grand jury indictment, no preliminary hearing need be held. For this reason, many prosecutors choose the grand jury indictment process because they don’t have to reveal as much evidence before the trial. 

For information on criminal cases from start to finish, get The Criminal Law Handbook: Know Your Rights, Survive the System, by attorneys Paul Bergman and Sara J. Berman-Barrett (Nolo). 

WASHINGTON DEPARTMENT OF LICENSING: the administrative body that oversees your privilege to drive. Most people understand that DOL can suspend their license because of a DUI conviction. What many people do not know is that DOL can (and will) take away your license for months or, in some cases, years before you are even formally charged with a DUI. DOL can also require you to obtain high risk insurance, an interlock ignition device (“blow ‘n’ go”), or other requirements. You have a limited time to contest these actions. DO NOT MISS THE DEADLINES OR YOU WILL WAIVE YOUR RIGHT TO A HEARING and DOL will suspend your license.

CRIMINAL COURTS: the judicial body that hears the criminal charges. alcohol or drug treatment, attend a DUI Victim’s Panel, abstain from alcohol and more. A conviction for DUI will affect your ability to travel to Canada and can also preclude your from relocating to other states. A negative outcome in court can also have additional affects on your license.

A holistic approach to DUI defense. While I will represent clients at DOL hearings or on the criminal charges only I don’t recommend or encourage this approach. Both process can have severe consequences and addressing one problem doesn’t help you much if you don’t address the other. Moreover the DOL process-conducting investigation; filing legal motions; and obtaining witness testimony on the record-can be used to set the stage for the criminal case. Beyond this your attorney should guide you through the process and be there for you should any issues arise after the case is settled.

Important deadline. You have 20 days from the date of arrest to request a DOL hearing. If you miss this date you will not get a hearing and you lose all rights to request any license suspension.

No. 81279-9 (consolidated)

CITY OF SEATTLE v. QUEZADA,

Filed October 29, 2009
______________________________
CHAMBERS, J. — In separate prosecutions, petitioners Scott Winebrenner and Jesus Quezada were each found guilty of driving under the influence (DUI) after their deferred prosecutions were revoked by the trial court. In both cases, the court declined to consider offenses committed after the current offense in determining the mandatory minimum sentence under RCW 46.61.5055(1). At issue is the meaning of “prior offenses” under thestatute and whether a “prior offense” is one that occurs before the arrest for the current offense or before sentencing. Concluding that the statute is ambiguous and subject to two reasonable interpretations, we apply the rule of lenity and construe it in favor of the petitioners. We reverse the Court of Appeals.

For more information and the full opinion read ”Go figure…a “Prior DUI” actually means an offense committed before the current DUI.“

Argued October 14, 2008. Decided December 31, 2008

THE STATE OF WASHINGTON, Respondent, v. HUYEN BICH NGUYEN, Petitioner.

Huyen Bich Nguyen, pro se.

Daniel T. Satterberg, Prosecuting Attorney, and Andrea R. Vitalich, Deputy, for respondent.

Author: Justice Barbara A. Madsen. WE CONCUR: Chief Justice Gerry L. Alexander, Justice Charles W. Johnson, Justice Richard B. Sanders, Justice Tom Chambers, Justice Susan Owens, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens.
En Banc

¶1 MADSEN, J. — At issue is whether physical control of a vehicle while under the influence of alcohol or drugs is an included offense of driving while under the influence of alcohol or drugs. We conclude that it is and accordingly affirm the Court of Appeals.

FACTS

¶2 At about 2:40 a.m. on February 15, 2003, Washington State Patrol Trooper Christopher F. Magallon noticed a vehicle partially pulled onto the gore point of the Howell Street on-ramp to Interstate 5. «1» Most of the car was off the road but part was in the lane of travel. The engine was running and the petitioner, defendant Gabrielle Nguyen, the only person in the car, was behind the wheel talking on a cell phone. When Trooper Magallon asked her whether she needed assistance, he noticed the smell of alcohol and mannerisms that led him to suspect that Ms. Nguyen was under the influence of alcohol. She told him that she had been drinking wine at a Seattle nightclub.

«1» The “gore point” is the triangular shaped area between the on-ramp and Interstate 5.»

¶3 Trooper Magallon asked Nguyen to move her car, after which he had her perform field sobriety tests. She performed poorly on the tests and her behavior was erratic. Magallon suspected she was under the influence of stimulants as well as alcohol and placed her under arrest. When Magallon searched the vehicle incident to Nguyen’s arrest, he found cocaine in the center console. Blood analysis disclosed that Nguyen had both alcohol and cocaine in her system.

¶4 Ms. Nguyen was charged with possession of cocaine and driving while under the influence of intoxicating liquor or any drug (DUI), RCW 46.61.502. 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 under the influence), RCW 46.61.504. The State proposed this alternative in anticipation that the court might rule certain evidence of DUI inadmissible. «2» Defense counsel countered that Ms. Nguyen’s vehicle was “safely off the roadway” prior to being pursued by a law enforcement officer, which, under RCW 46.61.504(2), is a complete affirmative defense to a charge of physical control while under the influence.

«2» The court in fact ruled certain statements inadmissible, including Ms. Nguyen’s admission that she drove from the nightclub to the gore point.»

¶5 The trial court found Ms. Nguyen not guilty of DUI but guilty of physical control while under the influence. The court determined that the “safely off the roadway” defense did not apply because Ms. Nguyen had not pulled out of the traffic lane, she was behind the wheel, and she told Magallon that she intended to continue driving. The court also found Nguyen guilty of possession of cocaine. The court imposed a standard range sentence on the possession offense and the mandatory minimum sentence on the offense of physical control while under the influence, to be served concurrently.

¶6 Nguyen appealed. The Court of Appeals affirmed her convictions in an unpublished opinion. State v. Huyen Bich Nguyen, noted at 140 Wn. App. 1020, 2007 WL 2411680, 2007 Wash. App. LEXIS 2527, review granted, 163 Wn.2d 1039 (2008).
¶7 Nguyen’s petition for review was granted solely on the included offense issue. She is acting pro se on this discretionary review, after counsel’s motion to withdraw was granted.

ANALYSIS

¶8 Ms. Nguyen contends that physical control while under the influence is not a “lesser included” offense of DUI because both offenses are gross misdemeanors subject to the same penalties. The State first contends that review is barred under the invited error doctrine and claims that error was invited because Ms. Nguyen acquiesced in consideration of physical control while under the influence as an included offense. On the merits, the State contends that under Washington law physical control while under the influence is an included offense of DUI, as the Court of Appeals held.

[1-3] ¶9 Because we conclude that physical control while under the influence is an included offense of DUI, no error occurred and the invited error doctrine does not apply. But the State’s claim that Ms. Nguyen “acquiesced” in consideration of the lesser included offense theory is also a claim that review is barred because Ms. Nguyen failed to object to consideration of the included offense theory when the State proposed it as an alternative. «3» In general, an error raised for the first time on appeal will not be reviewed. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). An exception exists for a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). This is a “‘narrow’” exception. Kirkman, 159 Wn.2d at 934 (quoting State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988)). A “manifest” error is an error that is “unmistakable, evident or indisputable.” State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). An error is manifest if it results in actual prejudice to the defendant or the defendant makes a “‘plausible showing’” “‘that the asserted error had practical and identifiable consequences in the trial of the case.’” State v. WWJ Corp., 138 Wn.2d 595, 602-03, 980 P.2d 1257 (1999) (quoting Lynn, 67 Wn. App. at 345). “The court previews the merits of the claimed constitutional error to determine whether the argument is likely to succeed.” State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001) (citing WWJ Corp., 138 Wn.2d at 603).
«3» The Court of Appeals did not address either the invited error doctrine or the failure to object.»

[4, 5] ¶10 If, as Ms. Nguyen contends, physical control while under the influence is not an included offense of DUI, then she was unconstitutionally convicted of a crime. Under article I, section 22 of the Washington State Constitution, it is error to try and convict a defendant of a crime that is not charged. State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988); State v. Markle, 118 Wn.2d 424, 432, 823 P.2d 1101 (1992); State v. Carr, 97 Wn.2d 436, 439, 645 P.2d 1098 (1982); State v. Olds, 39 Wn.2d 258, 260-61, 235 P.2d 165 (1951); see, e.g., State v. Smith, 2 Wn.2d 118, 98 P.2d 647 (1939) (individual charged with larceny could not be convicted of embezzlement). The error, if it occurred, would constitute manifest error affecting a constitutional right, and due to the nature of this error the prejudice is clear. Thus, we will review Ms. Nguyen’s claim of error.
[6-10] ¶11 Ms. Nguyen argues that physical control while under the influence is not an included offense of DUI because the two crimes are both gross misdemeanors subject to the same penalties. See RCW 46.61.502(5), .504(5), .5055. RCW 10.61.006 provides in relevant part that “the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information.” Although the statute does not use the word “lesser,” state courts have used the phrase “lesser included” to describe the offenses falling within its scope.
¶12 Under Washington law, the Workman test applies to determine whether an offense is a “lesser included” (or, more properly, an “included”) offense. State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). “[A] defendant is entitled to an instruction on a lesser included offense if two conditions are met. First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.” Id. at 447-48 (citations omitted). As a threshold determination apart from the Workman test, the included offense must arise from the same act or transaction supporting the greater offense that is charged. State v. Porter, 150 Wn.2d 732, 738-40, 82 P.3d 234 (2004).
¶13 Ms. Nguyen correctly concedes that all of the elements of RCW 46.61.504 (physical control while under the influence) fall within the elements of RCW 46.61.502 (DUI), thus satisfying the legal prong of the Workman test. She also agrees that because there was no proof that she drove, the factual prong also is satisfied. «4» She relies, however, on cases from other states in which the courts held that to be a “lesser included” offense, the offense must have a lesser penalty than the charged offense.
«4» The Court of Appeals held that physical control while under the influence is an included offense, relying on its prior analysis in McGuire v. City of Seattle, 31 Wn. App. 438, 642 P.2d 765 (1982), overruled on other grounds by State v. Votava, 149 Wn.2d 178, 66 P.3d 1050 (2003). While we agree with the court’s analysis in McGuire, that opinion does not address the issue presented here–whether an offense can be an included offense when the penalties for the offenses are the same.»
¶14 Although some other states require that a “lesser included” offense have a lesser penalty, «5» this does not mean that in Washington an offense cannot be an included offense if the two offenses have the same penalty. As a leading treatise explains, “American courts have shown considerable diversity in determining what constitutes a lesser-included offense.” WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING, & ORIN S. KERR, CRIMINAL PROCEDURE $ 24.8(e) (3d ed. 2008). The authors describe three general approaches. Id. Washington’s test comes within the first of these, which the authors call the “statutory elements approach” and which is also the approach followed by the United States Supreme Court under federal law. See Schmuck v. United States, 489 U.S. 705, 109 S. Ct. 1443, 103 L. Ed. 2d 734 (1989). Simply because some other states have adopted an approach that considers whether the penalty is lesser does not mean that Washington’s approach reflected in the Workman test is incorrect and must be changed. «6»
«5» See, e.g., State v. Deem, 40 Ohio St. 3d 205, 209, 533 N.E.2d 294 (1988); State v. Giroux, 2004 SD 24, 676 N.W.2d 139, 141. Ms. Nguyen also cites People v. Rush, 16 Cal. App. 4th 20, 23, 20 Cal. Rptr. 2d 15 (1993), overruled on other grounds by People v. Montoya, 33 Cal. 4th 1031, 94 P.3d 1098, 16 Cal. Rptr. 3d 902 (2004). However, it is questionable whether Rush correctly reflects California law. Other California cases do not state such a requirement, including the California State Supreme Court case that was cited in Rush for the general rule. People v. Pendleton, 25 Cal. 3d 371, 382, 599 P.2d 649, 158 Cal. Rptr. 343 (1979), cited in Rush, 16 Cal. App. 4th at 23.
Other states have expressly rejected the argument that the penalty must be lesser than the offense charged for the offense to be a lesser included offense. E.g., Nicholson v. State, 656 P.2d 1209, 1212 (Alaska Ct. App. 1982) (“lesser” refers to the relation between the elements of the offense, not the relation between their penalties); State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, 965 P.2d 94 (Ct. App. 1998) (lesser included offense can have the same as or a lesser penalty than the greater offense); Sanders v. State, 944 So. 2d 203 (Fla. 2006); State v. Habhab, 209 N.W.2d 73 (Iowa 1973) (noting that the state’s definition of “included offenses” had never referred to a requirement of a lesser penalty and its prior holdings negative any inference that the possible penalty was material to the determination); State v. Gresham, 276 Neb. 187, 194-95, 752 N.W.2d 571 (2008) (relative penalties are not a factor in identifying lesser included offense under the statutory elements test); State v. Young, 305 N.C. 391, 393, 289 S.E.2d 374 (1982); see also Suppl. Br. of Resp’t at 15-17 (citing additional cases).»
«6» Ms. Nguyen has also relied on other states’ cases for the proposition that we should hold that DUI and physical control while under the influence are “alternative” crimes, rather than that one is an included offense of the other. But the cases she cites are distinguishable because the statutes at issue in those cases clearly set out alternative means for committing the same crime. In State v. Stevens, 36 Kan. App. 2d 323, 328, 138 P.3d 1262 (2006), aff’d, 285 Kan. 307, 172 P.3d 570 (2007), the statute at issue, Kan. Stat. Ann. $ 8-1567(a)(3) (Supp. 2005), provided that “‘[n]o person shall operate or attempt to operate any vehicle . . . under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle.’” In State v. Bryan, 2004 WL 1533828 (Tenn. Crim. App. 2004), an unpublished opinion, Tenn. Code Ann. $ 55-10-401(a) provided that it “[i]t is unlawful for any person to drive or to be in physical control of any” vehicle. And in Hogan v. State, 178 Ga. App. 534, 535-36, 343 S.E.2d 770 (1986), the statute, Ga. Code Ann. $ 40-6-391, provided that “[a] person shall not drive or be in actual physical control of any moving vehicle while” under the influence. RCW 46.61.502 and .504 are not comparable to these statutes because they do not set out alternative means of committing the same crime.»
¶15 Additionally, Ms. Nguyen does not explain why a lesser penalty should be a requirement for an included offense. Inquiring into potential penalties has no bearing on whether the elements of the offense are necessarily included in the greater offense–the legal inquiry under the elements test used in Washington, nor does it disclose anything about whether the evidence supports the inference that the lesser crime was committed–the factual inquiry under the Washington test.
¶16 Most importantly, the question of what constitutes an included offense is a matter of what is required by RCW 10.61.006. RCW 10.61.006 forecloses consideration of the penalty because it limits an included offense to one “the commission of which is necessarily included” in the charged offense, establishing that the sole inquiry is whether the included offense is necessarily committed when the greater offense is committed. (Emphasis added.) The statutory language does not suggest in any way that the potential penalties are relevant to the determination. The word “lesser” does not even appear in the statute. «7»
«7» Cf. ME. REV. STAT. ANN. Title 17-A, $ 13-A(2) (expressly defining a “lesser included offense” as one “carrying a lesser penalty” than the charged offense); see State v. Stewart, 2007 ME 115, 930 A.2d 1031, 1033-34 (applying statute).»
¶17 Ms. Nguyen also contends that State v. Weber, 159 Wn.2d 252, 149 P.3d 646 (2006), supports her argument in principle. In Weber, we addressed the issue of which of two convictions must be vacated where conviction of both would violate the double jeopardy proscription. We determined that the conviction for the offense with the lesser penalty is the appropriate conviction to vacate. Nguyen maintains that Weber “stands for the rule that the magnitude of the penalty is critical to determining whether one offense is a lesser included offense of another.” Pet. for Review at 11. We disagree.
¶18 Double jeopardy inquiries are distinct from the question whether an offense is an included offense. The included offense doctrine is relevant to the questions whether a defendant has been charged with an offense of which he or she can be convicted, as well as whether he or she has had notice of the offenses with which charged. The double jeopardy question, as it arose in Weber, concerned the principle that multiple punishments cannot be imposed for the same offense. Because these are distinct questions, the answers are distinct as well.
¶19 In addition, we did not consider included offense cases when deciding Weber, and we expressly rejected the defendant’s argument that the proper remedy was to vacate the conviction for the offense that formed part of the proof of the other conviction. Weber, 159 Wn.2d at 266-67. Finally, the reasons for our decision in Weber do not apply to the question of how to define “included offense.” First, the severity of sentences is critical in determining which sentence to vacate because the legislature would not have intended the double jeopardy doctrine to operate so as to allow the defendant to receive the lesser sentence. Id. at 267. The same intent cannot be attributed to the legislature in the present context. Second, “retaining the offense that carries the greater sentence is the commonsense approach.” Id. at 269. What makes the most sense in the area of double-jeopardy-proscribed multiple punishments for the same offense does not help in construing RCW 10.61.006.
¶20 Weber and its reasoning do not support Ms. Nguyen’s argument.
¶21 The existing Washington test for deciding what constitutes an included offense is consistent with those of many states, as well as with the approach used by the federal courts. «8» Most importantly, the existing analysis conforms to RCW 10.61.006 while consideration of the relative penalties would not.

«8» The sole exception we have found in the federal cases is one Eighth Circuit Court of Appeals decision where the court said in dictum that the penalty must be lesser for a lesser included offense. United States v. Cady, 495 F.2d 742, 747 (8th Cir. 1974). This dictum has not been “followed” by any other circuit, nor has it been adhered to in the Eighth Circuit, which instead simply applies the Supreme Court’s analysis in Schmuck. See, e.g., United States v. Santisteban, 501 F.3d 873 (8th Cir. 2007); United States v. Hatcher, 323 F.3d 666, 667 (8th Cir. 2003); United States v. Turner, 130 F.3d 815 (8th Cir. 1997).»
¶22 We hold, in accord with our analysis in this opinion, that there is no requirement that an included offense must have a lesser penalty than the charged offense.

CONCLUSION

¶23 There is no requirement under Washington law that an offense carry a potential penalty that is less than the charged crime in order to be an included offense for which a defendant may be convicted, even if not charged. We hold that being in physical control of a vehicle while under the influence of intoxicating liquor or any drug in violation of RCW 46.61.504 is an included offense of DUI. We affirm the Court of Appeals and uphold Ms. Nguyen’s conviction for this crime.

ALEXANDER, C.J., and C. JOHNSON, SANDERS, CHAMBERS, OWENS, FAIRHURST, J.M. JOHNSON, and STEPHENS, JJ., concur.