AN
ACT Relating to correcting electronic monitoring provisions in the penalty
schedule for alcohol violators; reenacting and amending RCW 46.61.5055; and
declaring an emergency.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
46.61.5055 and 1998 c 215 s 1, 1998 c 214 s 1, 1998 c 211 s 1, 1998 c 210 s 4,
1998 c 207 s 1, and 1998 c 206 s 1 are each reenacted and amended to read as
follows:
(1)
A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who
has no prior offense within seven years shall be punished as follows:
(a)
In the case of a person whose alcohol concentration was less than 0.15, or for
whom for reasons other than the person's refusal to take a test offered
pursuant to RCW 46.20.308 there is no test result indicating the person's
alcohol concentration:
(i)
By imprisonment for not less than one day nor more than one year. Twenty-four
consecutive hours of the imprisonment may not be suspended or deferred unless
the court finds that the imposition of this mandatory minimum sentence would
impose a substantial risk to the offender's physical or mental well-being.
Whenever the mandatory minimum sentence is suspended or deferred, the court
shall state in writing the reason for granting the suspension or deferral and
the facts upon which the suspension or deferral is based. In lieu of the
mandatory minimum term of imprisonment required under this subsection
(1)(a)(i), the court may order not less than fifteen days of electronic home
monitoring. The offender shall pay the cost of electronic home monitoring.
The county or municipality in which the penalty is being imposed shall
determine the cost. The court may also require the offender's electronic home
monitoring device to include an alcohol detection breathalyzer, and the court
may restrict the amount of alcohol the offender may consume during the time the
offender is on electronic home monitoring; and
(ii)
By a fine of not less than three hundred fifty dollars nor more than five
thousand dollars. Three hundred fifty dollars of the fine may not be suspended
or deferred unless the court finds the offender to be indigent; and
(iii)
By suspension of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of ninety days. The period of
license, permit, or privilege suspension may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall suspend the offender's
license, permit, or privilege; or
(b)
In the case of a person whose alcohol concentration was at least 0.15, or for
whom by reason of the person's refusal to take a test offered pursuant to RCW
46.20.308 there is no test result indicating the person's alcohol
concentration:
(i)
By imprisonment for not less than two days nor more than one year. Two
consecutive days of the imprisonment may not be suspended or deferred unless
the court finds that the imposition of this mandatory minimum sentence would
impose a substantial risk to the offender's physical or mental well-being.
Whenever the mandatory minimum sentence is suspended or deferred, the court
shall state in writing the reason for granting the suspension or deferral and
the facts upon which the suspension or deferral is based. In lieu of the
mandatory minimum term of imprisonment required under this subsection
(1)(b)(i), the court may order not less than thirty days of electronic home
monitoring. The offender shall pay the cost of electronic home monitoring.
The county or municipality in which the penalty is being imposed shall
determine the cost. The court may also require the offender's electronic home
monitoring device to include an alcohol detection breathalyzer, and the court
may restrict the amount of alcohol the offender may consume during the time the
offender is on electronic home monitoring; and
(ii)
By a fine of not less than five hundred dollars nor more than five thousand
dollars. Five hundred dollars of the fine may not be suspended or deferred
unless the court finds the offender to be indigent; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of one year. The period of
license, permit, or privilege suspension may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall suspend the offender's
license, permit, or privilege; and
(iv)
By a court-ordered restriction under RCW 46.20.720.
(2)
A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who
has one prior offense within seven years shall be punished as follows:
(a)
In the case of a person whose alcohol concentration was less than 0.15, or for
whom for reasons other than the person's refusal to take a test offered
pursuant to RCW 46.20.308 there is no test result indicating the person's
alcohol concentration:
(i)
By imprisonment for not less than thirty days nor more than one year and sixty
days of electronic home monitoring. The offender shall pay for the cost of the
electronic monitoring. The county or municipality where the penalty is being
imposed shall determine the cost. The court may also require the offender's
electronic home monitoring device include an alcohol detection breathalyzer,
and may restrict the amount of alcohol the offender may consume during the time
the offender is on electronic home monitoring. Thirty days of imprisonment and
sixty days of electronic home monitoring may not be suspended or deferred
unless the court finds that the imposition of this mandatory minimum sentence
would impose a substantial risk to the offender's physical or mental well-being.
Whenever the mandatory minimum sentence is suspended or deferred, the court
shall state in writing the reason for granting the suspension or deferral and
the facts upon which the suspension or deferral is based; and
(ii)
By a fine of not less than five hundred dollars nor more than five thousand
dollars. Five hundred dollars of the fine may not be suspended or deferred
unless the court finds the offender to be indigent; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of two years. The period of
license, permit, or privilege revocation may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall revoke the offender's
license, permit, or privilege; and
(iv)
By a court-ordered restriction under RCW 46.20.720; or
(b)
In the case of a person whose alcohol concentration was at least 0.15, or for
whom by reason of the person's refusal to take a test offered pursuant to RCW
46.20.308 there is no test result indicating the person's alcohol
concentration:
(i)
By imprisonment for not less than forty-five days nor more than one year and
ninety days of electronic home monitoring. The offender shall pay for the cost
of the electronic monitoring. The county or municipality where the penalty is
being imposed shall determine the cost. The court may also require the
offender's electronic home monitoring device include an alcohol detection
breathalyzer, and may restrict the amount of alcohol the offender may consume
during the time the offender is on electronic home monitoring. Forty-five days
of imprisonment and ninety days of electronic home monitoring may not be
suspended or deferred unless the court finds that the imposition of this
mandatory minimum sentence would impose a substantial risk to the offender's
physical or mental well-being. Whenever the mandatory minimum sentence is
suspended or deferred, the court shall state in writing the reason for granting
the suspension or deferral and the facts upon which the suspension or deferral
is based; and
(ii)
By a fine of not less than seven hundred fifty dollars nor more than five
thousand dollars. Seven hundred fifty dollars of the fine may not be suspended
or deferred unless the court finds the offender to be indigent; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of nine hundred days. The
period of license, permit, or privilege revocation may not be suspended. The
court shall notify the department of licensing of the conviction, and upon
receiving notification of the conviction the department shall revoke the
offender's license, permit, or privilege; and
(iv)
By a court-ordered restriction under RCW 46.20.720.
(3)
A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who
has two or more prior offenses within seven years shall be punished as follows:
(a)
In the case of a person whose alcohol concentration was less than 0.15, or for
whom for reasons other than the person's refusal to take a test offered
pursuant to RCW 46.20.308 there is no test result indicating the person's
alcohol concentration:
(i)
By imprisonment for not less than ninety days nor more than one year and one
hundred twenty days of electronic home monitoring. The offender shall pay for
the cost of the electronic monitoring. The county or municipality where the
penalty is being imposed shall determine the cost. The court may also require
the offender's electronic home monitoring device include an alcohol detection
breathalyzer, and may restrict the amount of alcohol the offender may consume
during the time the offender is on electronic home monitoring. Ninety days of
imprisonment and one hundred twenty days of electronic home monitoring may not
be suspended or deferred unless the court finds that the imposition of this
mandatory minimum sentence would impose a substantial risk to the offender's physical
or mental well-being. Whenever the mandatory minimum sentence is suspended or
deferred, the court shall state in writing the reason for granting the
suspension or deferral and the facts upon which the suspension or deferral is
based; and
(ii)
By a fine of not less than one thousand dollars nor more than five thousand
dollars. One thousand dollars of the fine may not be suspended or deferred
unless the court finds the offender to be indigent; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of three years. The period of
license, permit, or privilege revocation may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall revoke the offender's
license, permit, or privilege; and
(iv)
By a court-ordered restriction under RCW 46.20.720; or
(b)
In the case of a person whose alcohol concentration was at least 0.15, or for
whom by reason of the person's refusal to take a test offered pursuant to RCW
46.20.308 there is no test result indicating the person's alcohol
concentration:
(i)
By imprisonment for not less than one hundred twenty days nor more than one
year and one hundred fifty days of electronic home monitoring. The offender
shall pay for the cost of the electronic monitoring. The county or
municipality where the penalty is being imposed shall determine the cost. The
court may also require the offender's electronic home monitoring device include
an alcohol detection breathalyzer, and may restrict the amount of alcohol the
offender may consume during the time the offender is on electronic home
monitoring. One hundred twenty days of imprisonment and one hundred fifty days
of electronic home monitoring may not be suspended or deferred unless the court
finds that the imposition of this mandatory minimum sentence would impose a
substantial risk to the offender's physical or mental well-being. Whenever the
mandatory minimum sentence is suspended or deferred, the court shall state in
writing the reason for granting the suspension or deferral and the facts upon
which the suspension or deferral is based; and
(ii)
By a fine of not less than one thousand five hundred dollars nor more than five
thousand dollars. One thousand five hundred dollars of the fine may not be
suspended or deferred unless the court finds the offender to be indigent; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of four years. The period of
license, permit, or privilege revocation may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall revoke the offender's
license, permit, or privilege; and
(iv)
By a court-ordered restriction under RCW 46.20.720.
(4)
In exercising its discretion in setting penalties within the limits allowed by
this section, the court shall particularly consider the following:
(a)
Whether the person's driving at the time of the offense was responsible for
injury or damage to another or another's property; and
(b)
Whether the person was driving or in physical control of a vehicle with one or
more passengers at the time of the offense.
(5)
An offender punishable under this section is subject to the alcohol assessment
and treatment provisions of RCW 46.61.5056.
(6)
After expiration of any period of suspension or revocation of the offender's
license, permit, or privilege to drive required by this section, the department
shall place the offender's driving privilege in probationary status pursuant to
RCW 46.20.355.
(7)(a)
In addition to any nonsuspendable and nondeferrable jail sentence required by
this section, whenever the court imposes less than one year in jail, the court
shall also suspend but shall not defer a period of confinement for a period not
exceeding five years. The court shall impose conditions of probation that
include: (i) Not driving a motor vehicle within this state without a valid
license to drive and proof of financial responsibility for the future; (ii) not
driving a motor vehicle within this state while having an alcohol concentration
of 0.08 or more within two hours after driving; and (iii) not refusing to
submit to a test of his or her breath or blood to determine alcohol
concentration upon request of a law enforcement officer who has reasonable
grounds to believe the person was driving or was in actual physical control of
a motor vehicle within this state while under the influence of intoxicating
liquor. The court may impose conditions of probation that include
nonrepetition, installation of an ignition interlock or other biological or
technical device on the probationer's motor vehicle, alcohol or drug treatment,
supervised probation, or other conditions that may be appropriate. The
sentence may be imposed in whole or in part upon violation of a condition of probation
during the suspension period.
(b)
For each violation of mandatory conditions of probation under (a)(i) and (ii)
or (a)(i) and (iii) of this subsection, the court shall order the convicted
person to be confined for thirty days, which shall not be suspended or
deferred.
(c)
For each incident involving a violation of a mandatory condition of probation
imposed under this subsection, the license, permit, or privilege to drive of
the person shall be suspended by the court for thirty days or, if such license,
permit, or privilege to drive already is suspended, revoked, or denied at the
time the finding of probation violation is made, the suspension, revocation, or
denial then in effect shall be extended by thirty days. The court shall notify
the department of any suspension, revocation, or denial or any extension of a
suspension, revocation, or denial imposed under this subsection.
(8)
A court may waive the electronic home monitoring requirements of this
chapter when:
(a)
The offender does not have a dwelling, telephone service, or any other
necessity to operate an electronic home monitoring system;
(b)
The offender does not reside in the state of Washington; or
(c)
The court determines that there is reason to believe that the offender would
violate the conditions of the electronic home monitoring penalty.
Whenever
the mandatory minimum term of electronic home monitoring is waived, the court
shall state in writing the reason for granting the waiver and the facts upon
which the waiver is based, and shall impose an alternative sentence with
similar punitive consequences. The alternative sentence may include, but is
not limited to, additional jail time, work crew, or work camp.
Whenever
the combination of jail time and electronic home monitoring or alternative
sentence would exceed three hundred sixty-five days, the offender shall serve
the jail portion of the sentence first, and the electronic home monitoring or
alternative portion of the sentence shall be reduced so that the combination
does not exceed three hundred sixty-five days.
(9)
For purposes of this section:
(a)
(("Electronic home monitoring" shall not be considered confinement
as defined in RCW 9.94A.030;
(b))) A
"prior offense" means any of the following:
(i)
A conviction for a violation of RCW 46.61.502 or an equivalent local ordinance;
(ii)
A conviction for a violation of RCW 46.61.504 or an equivalent local ordinance;
(iii)
A conviction for a violation of RCW 46.61.520 committed while under the
influence of intoxicating liquor or any drug;
(iv)
A conviction for a violation of RCW 46.61.522 committed while under the
influence of intoxicating liquor or any drug;
(v)
A conviction for a violation of RCW 46.61.5249, 46.61.500, or 9A.36.050 or an
equivalent local ordinance, if the conviction is the result of a charge that
was originally filed as a violation of RCW 46.61.502 or 46.61.504, or an
equivalent local ordinance, or of RCW 46.61.520 or 46.61.522;
(vi)
An out-of-state conviction for a violation that would have been a violation of
(((b))) (a)(i), (ii), (iii), (iv), or (v) of this subsection if
committed in this state;
(vii)
A deferred prosecution under chapter 10.05 RCW granted in a prosecution for a
violation of RCW 46.61.502, 46.61.504, or an equivalent local ordinance; or
(viii)
A deferred prosecution under chapter 10.05 RCW granted in a prosecution for a
violation of RCW 46.61.5249, or an equivalent local ordinance, if the charge
under which the deferred prosecution was granted was originally filed as a
violation of RCW 46.61.502 or 46.61.504, or an equivalent local ordinance, or
of RCW 46.61.520 or 46.61.522; and
(((c)))
(b) "Within seven years" means that the arrest for a prior
offense occurred within seven years of the arrest for the current offense.
NEW
SECTION. Sec. 2. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
NEW SECTION. Sec. 3. This
act is necessary for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions, and takes effect immediately.
