HOUSE BILL REPORT
HB 1614
This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent. |
As Reported by House Committee On:
Public Safety
Transportation
Title: An act relating to impaired driving.
Brief Description: Concerning impaired driving.
Sponsors: Representatives Goodman, Klippert, Orwall, Hayes, Pellicciotti, Holy, Griffey, Pettigrew, Muri and Haler.
Brief History:
Committee Activity:
Public Safety: 2/7/17, 2/9/17 [DPS];
Transportation: 2/22/17, 2/23/17 [DP2S(w/o sub PS)].
Brief Summary of Second Substitute Bill |
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HOUSE COMMITTEE ON PUBLIC SAFETY |
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. Signed by 9 members: Representatives Goodman, Chair; Pellicciotti, Vice Chair; Klippert, Ranking Minority Member; Hayes, Assistant Ranking Minority Member; Appleton, Chapman, Orwall, Pettigrew and Van Werven.
Minority Report: Without recommendation. Signed by 2 members: Representatives Griffey and Holy.
Staff: Omeara Harrington (786-7136).
Background:
Vacating Conviction Records.
A person convicted of a misdemeanor or gross misdemeanor offense who has completed all of the terms of the sentence and has met other statutory criteria may apply to the sentencing court for a vacation of the record of conviction. Certain convictions cannot be vacated, including convictions for Driving Under the Influence (DUI) or Actual Physical Control While Under the Influence (PC).
A record of conviction for a gross misdemeanor that is considered a "prior offense" under the impaired driving laws may not be vacated if the person has had a subsequent alcohol or drug violation within 10 years of the date of conviction of the prior offense. The term "prior offense" is defined and generally includes convictions for alcohol and drug-related driving offenses, such as negligent driving in the first degree, impaired operation of a vessel, reckless driving if the original charge was DUI, and any deferred prosecution for similar alcohol-related driving offenses.
Mandatory Arrest and Hold.
A law enforcement officer must arrest a person without a warrant, and keep him or her in custody pending release on bail, personal recognizance, or a court order, when the officer has probable cause to believe that the person has committed a DUI or PC offense and the officer knows that the person has had at least one prior offense within the previous 10 years. The requirement does not apply if the person requires immediate medical attention and is admitted to a hospital.
Criminal and Administrative Penalties for Impaired Driving Convictions.
The criminal penalties associated with a DUI or PC conviction vary according to how many prior offenses a person has and the defendant's blood alcohol concentration (BAC) at the time of testing.
If a defendant has no prior offenses in seven years, the court must impose a minimum term of imprisonment, a portion of which cannot be suspended unless the court makes written findings that the mandatory minimum sentence would impose a substantial risk to the offender's physical or mental well-being. In lieu of the mandatory minimum, the court may order a term of electronic home monitoring (EHM) or 24/7 Sobriety Program monitoring. The 24/7 Sobriety Program is a 24-hour and seven-day a week sobriety program in which a participant submits to the testing of the participant's blood, breath, urine, or other bodily substances in order to determine the presence of alcohol, marijuana, or any controlled substance in the participant's body. Participants who violate the terms of the program are subject to sanctions.
A second or subsequent offense in seven years carries both a mandatory minimum term of incarceration as well as a minimum term of EHM. The court must impose the minimum term of incarceration, but may order additional jail time or a term of 24/7 Sobriety Program monitoring in place of the mandatory EHM. If a person has two or three prior offenses, mandatory minimum EHM may only be replaced by additional jail time.
A person found guilty of DUI or PC is subject to additional sanctions, including a mandatory term of driver's license suspension or revocation. The period of suspension or revocation ranges between 90 days and four years, depending on the person's BAC at the time of testing and the number of prior offenses. For first time offenders, a portion of the term of driver's license suspension may be avoided through participation in 24/7 Sobriety Program monitoring.
Ignition Interlock Requirements.
The Department of Licensing (DOL) must require that a person only drive a vehicle equipped with a functioning ignition interlock device in certain circumstances, including:
when required by court order as a condition of pretrial release;
while the person has an ignition interlock driver's license;
when a person is participating in a deferred prosecution for DUI, PC, or other specified offenses;
during any applicable period of suspension, revocation, or denial of driving privileges due to a conviction for DUI, PC, or other specified offenses; and
upon order of a court restricting a person who is charged or convicted with any offense involving the use, consumption, or possession of alcohol while operating a motor vehicle.
An ignition interlock user must pay the cost of installing, removing, and leasing the ignition interlock device, unless the ignition interlock company waives costs or the person is indigent. In addition, the applicant must pay a monthly $20 fee for deposit into the Ignition Interlock Device Revolving Account. The applicant must pay the $20 fee directly to the ignition interlock company, which, in turn, remits the fee to the DOL for deposit into the account.
The duration of the ignition interlock restriction depends on the circumstances under which the restriction was imposed. The DOL will not remove a restriction associated with a deferred prosecution or conviction until it receives a declaration from the ignition interlock vendor certifying that the four consecutive months leading up to the removal have been free of certain specified incidents including:
any attempt to start the vehicle with a BAC of 0.04 or more;
failure to take any random test;
failure to pass any random retest with a BAC of 0.025 or lower; or
failure of the person to appear at the ignition interlock device vendor when required for maintenance, repair, calibration, monitoring, inspection, or replacement of the device.
The period of restriction associated with a deferred prosecution or conviction must be tolled during the period of time that the restricted person does not have an ignition interlock device installed on a vehicle owned or operated by the person.
Admissibility of Blood and Breath Tests.
Analysis of a person's blood or breath must be performed according to methods approved by the state toxicologist.
A breath test performed by any instrument approved by the state toxicologist is admissible at trial or in an administrative proceeding if there is prima facie evidence of certain factors, including, but not limited to, evidence that: the test was performed by a person authorized by the state toxicologist to perform the test; the person being tested did not vomit or have anything to eat, drink, or smoke for at least 15 minutes prior to administration of the test; and the person being tested did not have any foreign substances, not to include dental work, in his or her mouth.
When a blood test is administered for the purpose of determining its alcoholic or drug content, the blood withdrawal may only be performed by statutorily authorized professionals including physicians, nurses, physician assistants, and medical assistant-certified or medical-assistant phlebotomists, among others. Proof of a person's qualification to draw blood may be established through the Department of Health's online provider credential search.
Statute provides that the refusal of a person to submit to a test of the alcohol or drug concentration in the person's blood or breath is admissible into evidence at a subsequent trial.
License Suspension for Willful Failure to Appear.
Among other circumstances, the DOL must suspend a person's driver's license when the person willfully fails to appear at a requested hearing for a moving violation or fails to comply with the terms of the notice of a traffic-related criminal complaint. Whenever a person served with a traffic citation or a traffic-related criminal complaint willfully fails to appear or comply, the court must promptly provide notice to the DOL.
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Summary of Substitute Bill:
Vacating Conviction Records.
The restrictions on vacating an impaired driving-related "prior offense" are amended to add an express requirement that 10 years has elapsed since the arrest for the prior offense. The current law requirement remains that the applicant must also not have had an alcohol or drug violation within 10 years of the arrest for the vacated offense.
Mandatory Arrest and Hold.
In addition to persons who have been convicted of a prior offense, persons suspected of impaired driving must be arrested without a warrant and held in custody pending release on bail, personal recognizance, or court order when the arresting officer knows that the person is charged with or awaiting arraignment on another offense related to impaired driving.
Criminal and Administrative Penalties for Impaired Driving Convictions.
For a second impaired driving offense, the court may replace the entire standard sentence of incarceration and EHM with a longer term of either EHM or 24/7 Sobriety Program monitoring. For offenders who had a lower BAC of testing, the court may replace the standard sentence with 120 days of either EHM or 24/7 Sobriety Program monitoring. For higher BAC offenders, six months of either EHM or 24/7 Sobriety Program monitoring may replace a standard sentence.
Additionally, second time offenders with a lower BAC may avoid up to one year of the mandatory two-year driver's license suspension through participation in 24/7 Sobriety Program monitoring.
Ignition Interlock Requirements.
A person must have 180 consecutive violation-free days prior to release of an ignition interlock restriction, rather than four months.
A person may receive a medical waiver to the mandatory tolling of the ignition interlock restriction that applies during the period of time that there is no ignition interlock device installed on a restricted person's vehicle. In order to be granted a waiver, a person must obtain a declaration from a physician, physician's assistant, or advanced registered nurse practitioner indicating that the person is unable to operate the ignition interlock due to a medical condition.
Admissibility of Blood and Breath Tests.
An exception is made for piercings in the requirement that, in order for a breath sample to be admissible, the person providing the sample must have nothing in his or her mouth.
In addition to other authorized professionals, any person certified under 18.71 RCW as a physician's trained advanced emergency medical technician and paramedic may perform blood draws pursuant to an impaired driving investigation. Persons with advanced emergency medical technician or paramedic licensure under 18.73 RCW are removed from the list of authorized professionals. For blood draws occurring outside of the state, any health care provider may perform a withdrawal, provided he or she is lawfully authorized to perform the withdrawal of blood for the purpose of determining its alcoholic or drug content in the state in which the withdrawal takes place.
The statute regarding the admissibility of a person's refusal to submit to a blood or breath test is amended to indicate that a refusal to submit to a blood test is admissible if a search warrant, or an exception to the warrant requirement, authorized the seizure.
License Suspension for Willful Failure to Appear.
A court must notify the DOL of any person who willfully fails to appear after having been "notified of" (rather than "served with") a traffic-related criminal complaint.
Substitute Bill Compared to Original Bill:
Provisions of the bill are removed that:
require ignition interlock users to submit monthly $20 Ignition Interlock Device Revolving Account payments directly to the DOL, rather than to the ignition interlock company for remittance to the DOL; and
define the circumstances under which a vehicle is "safely off the roadway" for purposes of the defense to the crime of Actual Physical Control While Under the Influence.
Changes are made to the list of medical professionals authorized to perform admissible blood draws. The current law reference to persons with advanced emergency medical technician or paramedic licensure under 18.73 RCW is removed. Also, the category of persons authorized to perform a blood draw outside of the state is narrowed from "any qualified person" to "any health care provider lawfully authorized to perform a withdrawal for that purpose in the state in which the withdrawal takes place."
A medical exemption is created to allow persons with a medical declaration to avoid a current law requirement that an ignition interlock restriction is tolled while the restricted person does not have an ignition interlock installed.
The penalties for a second impaired driving offense are amended to allow an extended term of either EHM or 24/7 Sobriety Program monitoring in place of the mandatory minimum term of jail time and EHM. Additionally, lower BAC offenders are given the opportunity to reduce a portion of the mandatory driver's license suspension if the offender completes or is enrolled in a term of 24/7 Sobriety Program monitoring.
All other provisions of the underlying bill are retained.
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Appropriation: None.
Fiscal Note: Available. New fiscal note requested on February 9, 2017.
Effective Date of Substitute Bill: The bill takes effect 90 days after adjournment of the session in which the bill is passed.
Staff Summary of Public Testimony:
(In support) This bill is the product of a comprehensive work group that examined a range of issues. There is a lot of detail in the DUI statutes. These seem to be minor changes, but they are actually significant.
(Opposed) None.
(Other) There are no issues with the overall bill. However, there are concerns with the section in the bill allowing paramedics to perform blood draws. Under current law, paramedics licensed under 18.73 RCW are covered, but those under 18.71 RCW are not. Paramedics are often dealing with people who have been in a car accident. Following a trauma incident, responders want to get the patient to the hospital in under 15 minutes. These blood draws are technical procedures that need to be done in a specific manner and must meet certain requirements, such as not using alcohol wipes and having adequate chain of custody. The party performing the draw may also be subpoenaed. Firefighters are not experts with these situations, and it is important to avoid technical errors in criminal cases. Additionally, it is important to be able to treat the person like a patient, and allow for them to be honest about what happened. Although the statute is permissive, the DOL policies often require compliance with law enforcement requests.
The change to the safely off the roadway defense effectively eliminates the defense. The factors in the bill describe a situation in which the person is not actually in physical control. The safely off the roadway defense in current law makes policy sense, in that it encourages people to get off of the roadway. There is a jury instruction that is based on case law, and allows the jury to decide whether or not someone did the right thing under the specific facts of the case. Very few of these cases go to trial, and there has not been an epidemic of acquittals on this basis. The law should be left as it is today.
There is a practical issue with ignition interlock requirements that should be addressed in this bill. As of last June, if a driver cannot use an ignition interlock, the period of restriction is tolled. There are people with disabilities that cannot operate an interlock device, which results in a lifetime prohibition from driving. There should be a medical exception from the tolling provision available upon proof of medical disability.
The DOL's current process of collecting monthly $20 fees from ignition interlock users through the six ignition interlock companies is already cumbersome. Under this bill, the DOL would receive $20 from every ignition interlock user every month, as opposed to six checks. The State Treasurer requires use of a lock box. It is anticipated that there will be higher call volumes in customer service centers.
Persons Testifying: (In support) Representative Goodman, prime sponsor.
(Other) Michael White, Washington State Council of Fire Fighters; Jason Lantz, Washington Association of Criminal Defense Lawyers and Washington Defender Association; Tony Sermonti, Department of Licensing; and Shelly Baldwin, Traffic Safety Commission.
Persons Signed In To Testify But Not Testifying: None.
HOUSE COMMITTEE ON TRANSPORTATION |
Majority Report: The second substitute bill be substituted therefor and the second substitute bill do pass and do not pass the substitute bill by Committee on Public Safety. Signed by 24 members: Representatives Clibborn, Chair; Farrell, Vice Chair; Fey, Vice Chair; Wylie, Vice Chair; Orcutt, Ranking Minority Member; Hargrove, Assistant Ranking Minority Member; Harmsworth, Assistant Ranking Minority Member; Chapman, Gregerson, Hayes, Irwin, Kloba, Lovick, McBride, Morris, Ortiz-Self, Pellicciotti, Pike, Riccelli, Shea, Stambaugh, Tarleton, Van Werven and Young.
Staff: Patricia Hasan (786-7292).
Summary of Recommendation of Committee On Transportation Compared to Recommendation of Committee On Public Safety:
The Transportation Committee recommends:
specifying that, for purposes of the mandatory arrest and hold requirement, a law enforcement officer's knowledge of an impaired driving suspect's pending charge or upcoming arraignment for a qualifying offense must be based on the officer's review of the information available to the officer at the time of arrest;
allowing ignition interlock companies to retain $1 of the monthly $20 payments that are made by device users in order to offset the companies' administrative costs associated with collection of the payments and remittance to the Department of Licensing (DOL) for deposit into the Ignition Interlock Device Revolving Account;
amending the medical exemption to the requirement that an ignition interlock restriction is tolled during the time that a person does not have an ignition interlock device installed on his or her vehicle. Rather than allowing an exemption upon a medical provider's declaration, the exemption applies if the person receives a determination from the DOL that the person is unable to operate an ignition interlock device due to a physical disability. The DOL may charge a person seeking a medical exemption a reasonable fee for the assessment; and
conditioning the authority granted in the bill allowing persons with a physician's trained advanced emergency medical technician and paramedic certification to perform blood withdrawals in impaired driving investigations upon the withdrawal being within the protocols of the certified person's employing agency.
Appropriation: None.
Fiscal Note: Available.
Effective Date of Second Substitute Bill: The bill takes effect 90 days after adjournment of the session in which the bill is passed.
Staff Summary of Public Testimony:
(In support) For 10 years, there has been an informal impaired driving working group including all stakeholders interested in reducing impaired driving, and a lot of progress has been made. Only one-quarter of the fatalities and serious injuries on Washington's roads are related to drunk driving, down from what used to be one-half of all fatalities and serious injuries. Washington should keep making progress to making our roads safer.
(Opposed) None.
(Other) A technical amendment is requested for this bill that would clarify that advanced emergency medical technicians and paramedics be in compliance with their employer's medical program.
Persons Testifying: (In support) Representative Goodman, prime sponsor.
(Other) Michael White, Washington State Council of Fire Fighters.
Persons Signed In To Testify But Not Testifying: None.