WSR 08-24-059

PERMANENT RULES

DEPARTMENT OF LICENSING


[ Filed November 26, 2008, 12:21 p.m. , effective January 1, 2009 ]


Effective Date of Rule: January 1, 2009.

Purpose: Creates a new chapter in TITLE 308 WAC establishing application and eligibility requirements for ignition interlock driver licensing, maintenance of the ignition interlock device revolving account, providing a mechanism for assistance for the indigent, providing for hearings, and implementing the ignition interlock device compliance pilot program. Makes conforming amendments to WAC 308-104-100, regarding eligibility for occupational/temporary restricted driver's licenses and WAC 308-104-105, regarding occupational/temporary restricted license denial hearings.

Citation of Existing Rules Affected by this Order: Amending WAC 308-104-100 and 308-104-105.

Statutory Authority for Adoption: RCW 46.01.110, 46.20.385, 46.20.391, and 46.20.745.

Adopted under notice filed as WSR 08-21-143 on October 21, 2008.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: November 26, 2008.

Becky Loomis

Assistant Director

Ignition Interlock Driver's License

Chapter 308-107 WAC


NEW SECTION
WAC 308-107-010   Definitions.   As used in this chapter, unless the context requires otherwise, the term:

(1) "Authorized service provider" or "ignition interlock vendor" means a person or company meeting all qualifications set out in chapter 204-50 WAC and approved and trained by a manufacturer to service, install, monitor, calibrate, and provide information on manufacturer's devices currently certified for use in Washington state.

(2) "Breath or blood alcohol concentration (BAC)" means the amount of alcohol in a person's blood or breath determined by chemical analysis, which shall be measured by grams of alcohol per:

(a) One hundred milliliters of blood; or

(b) Two hundred ten liters of breath.

(3) "Commission" means the Washington traffic safety commission.

(4) "Device" means an ignition interlock device as defined under RCW 46.04.215 and WAC 204-50-030.

(5) "Department" means the department of licensing.

(6) "Event log report" means a compilation of the data downloaded from a device under the provisions of WAC 204-50-080.

(7) "Functioning device" means a device that is properly installed, maintained, and meets the requirements specified in chapter 204-50 WAC.

(8) "Manufacturer" or "ignition interlock company" means the person, company, or corporation who produces an ignition interlock device, and certifies to the Washington state patrol that an authorized service provider is qualified to service, install, monitor, calibrate, and provide information on devices.

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NEW SECTION
WAC 308-107-020   Ignition interlock driver's license -- Application.   A person applying for an ignition interlock driver's license must meet the requirements of RCW 46.20.385, submit a nonrefundable fee as required by RCW 46.20.380, and submit an application on a form provided by the department.

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NEW SECTION
WAC 308-107-030   Functioning device -- Satisfactory proof of installation.   For purposes of RCW 46.20.385, satisfactory proof of installation of a functioning device must include:

(1) An ignition interlock status verification form submitted by a manufacturer who has entered into an agreement with the department under WAC 308-107-050(2), or by an authorized service provider associated with such manufacturer, indicating that a device has been installed on a vehicle owned or operated by the driver; and

(2) An event log report periodically submitted by the manufacturer to the commission, as provided by WAC 308-107-080, indicating that the device is being maintained under WAC 204-50-080.

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NEW SECTION
WAC 308-107-040   Functioning device -- Evidence that device is no longer installed or functioning.   (1) For purposes of RCW 46.20.311, 46.20.385, and 46.20.740, the department may determine that a device is no longer installed or functioning in the vehicle(s) driven by a person based on:

(a) An ignition interlock status verification form submitted by a manufacturer, or by an authorized service provider associated with such manufacturer, indicating that a device is no longer installed or functioning;

(b) Notice from the commission that a report received under WAC 308-107-080 indicates that a device is no longer installed or functioning or that the driver has failed to appear for scheduled maintenance;

(c) The termination or expiration without renewal of an agreement entered into between the department and the manufacturer of the device(s) installed in the vehicle(s) driven by the person;

(d) A statement from a law enforcement officer made under RCW 9A.72.085 indicating that a device has been disabled or removed from a motor vehicle operated by the person; or

(e) A conviction under RCW 46.20.740(2) for operating a motor vehicle that is not equipped with a functioning device.

(2) Before making a determination under this section, the department may consider evidence from the person indicating that:

(a) The person is no longer operating the vehicle in which a device is no longer installed or functioning and that another vehicle driven by the person is so equipped; or

(b) The device has been replaced with a functioning device installed by another manufacturer or authorized service provider.

(3) Once the department has determined under this section that a device is no longer installed or functioning, the person must re-establish that a functioning device has been installed before a license may be reinstated or reissued during the remainder of an applicable period of restriction.

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NEW SECTION
WAC 308-107-050   Ignition interlock device revolving account.   (1) As required under RCW 46.20.385 (6)(a), unless determined by the department to be indigent under WAC 308-107-060, a person who is applying for or has been issued an ignition interlock driver's license must pay an additional fee of twenty dollars per month or partial month for which the ignition interlock driver's license is valid to the manufacturer of the device(s) installed in the motor vehicle(s) driven by the person. Payment may be made directly to the manufacturer, or through the authorized service provider, depending upon the manufacturer's business practices.

(2) A manufacturer providing devices to persons who are applying for or have been issued an ignition interlock driver's license, either directly or through an authorized service provider, must enter into an agreement with the department for the collection and transmittal of the twenty dollar monthly fee required under RCW 46.20.385 (6)(a). Any agreement made under this section must include appropriate reporting requirements and accounting practices to permit the department to audit the handling of the fees that must be remitted to the department. The department may terminate an agreement with a manufacturer upon a showing of good cause. Good cause shall include, but not be limited to, violation of the agreement, violation of the laws and rules governing the installation of devices, and violation of this chapter. An agreement between the department and a manufacturer will be valid for no more than two years, provided that the department may extend an agreement for up to an additional two years at its discretion.

(3) As provided by RCW 46.20.385 (6)(b), the department shall deposit the proceeds of the twenty-dollar fee into the ignition interlock device revolving account.

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NEW SECTION
WAC 308-107-060   Indigence -- Monetary assistance -- Determination of need.   (1) An applicant for, or holder of, an ignition interlock driver's license may apply to the department for a determination that he or she is indigent for purposes of RCW 46.20.385 and 46.20.745. The department will determine that a person is indigent if the person is:

(a) Receiving one of the following types of public assistance: Temporary assistance for needy families, general assistance, poverty-related veterans' benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or

(b) Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level.

In making a determination of indigence under this subsection, the department may request that the applicant provide records or other evidence of public assistance, income, payment of taxes, or other relevant issues.

A person who has been determined to be indigent under this subsection is exempt from paying the additional fee of twenty dollars required under RCW 46.20.385 (6)(a), and may apply for monetary assistance under subsection (2) of this section.

(2) Subject to appropriation by the legislature of funds from the ignition interlock device revolving account and the availability of funds in the ignition interlock device revolving account, a person who has been determined to be indigent under this section may apply to the department for monetary assistance in covering the costs of installing, removing, and leasing an ignition interlock device, and any applicable licensing fees.

(3) Subject to funds appropriated, the department may base the amount of monetary assistance provided to an applicant under subsection (2) of this section on a determination of need. Where possible, a determination of need may be based on such factors as:

(a) Total number of persons in household, including the number of dependants;

(b) The age of the applicant and whether the applicant is a dependant of another person;

(c) Monthly expenses; and

(d) Liquid assets.

(4) A person who has been determined to be indigent under this section must re-apply for a determination of indigence on an annual basis.

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NEW SECTION
WAC 308-107-070   Ignition interlock driver's license -- Hearing.   (1) Upon notification by the department that an ignition interlock driver's license has been denied or cancelled under RCW 46.20.385 the aggrieved person may request a formal hearing to contest the department's decision. No hearing need be granted where the department is prevented from issuing an ignition interlock driver's license by rule or law. A request for a hearing must be submitted in writing.

(2) Upon notification by the department that a determination has been made under WAC 308-107-060 that a person is not indigent, the person may request a formal hearing to contest the department's determination.

(3) Within ten days of receipt of a request for a hearing, the department shall notify the requester in writing of the time and location of the hearing. The hearing may be held either in the person's county of residence or in any county adjoining the person's county of residence, except that all or part of the hearing may, at the discretion of the department, be conducted by telephone or other electronic means.

(4) The hearing shall be conducted by a hearing officer appointed by the director. The director may delegate the authority to render final decisions to the hearing officer.

(5) For a hearing requested under subsection (1) of this section, the scope of the hearing shall be limited to the following issues:

(a) Whether the person had previously been issued a valid license;

(b) Whether the suspension or revocation giving rise to the application for an ignition interlock driver's license is one for which an ignition interlock driver's license may be issued under RCW 46.20.385;

(c) Whether the person has committed an offense of vehicular assault or vehicular homicide within the seven years immediately preceding the conviction or incident for which the ignition interlock driver's license is requested or, if there are multiple suspensions or revocations in effect, within the seven years immediately preceding the latest conviction or incident for which the ignition interlock driver's license is requested;

(d) Whether a device was installed and functioning; and

(e) Whether the person is currently suspended or revoked for any reason for which an ignition interlock driver's license is not available.

(6) The person's official driving record provided to the hearing officer by the department shall be prima facie evidence of the issues contained in subsection (5) of this section unless the person presents clear and convincing evidence to the contrary.

(7) For a hearing requested under subsection (2) of this section, the person shall have the burden of proving by a preponderance of the evidence that the department's determination is in error.

(8) In the event that the person fails to appear for the hearing, no hearing shall be held. The case shall be remanded to the department and the department's previous decision denying or cancelling the ignition interlock driver's license, or decision determining that the person is not indigent, shall be affirmed.

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NEW SECTION
WAC 308-107-080   Ignition interlock device compliance -- Pilot program.   (1) As a part of the pilot program established under RCW 46.20.745, an authorized service provider must forward the event log reports for any device maintained under WAC 204-50-080, or a report that the driver failed to appear for the scheduled maintenance, to the manufacturer of the device. The manufacturer of the device must compile the reports received from their authorized service providers in a form specified by the commission and forward the compilation to the commission on a schedule established by the commission.

(2) For the duration of the pilot program, the event log report must include:

(a) The date, time, BAC of the driver, and success or failure of each attempt to start the vehicle;

(b) The date, time, BAC of the driver, and success or failure of each random retest;

(c) All attempts to tamper with the ignition interlock device;

(d) All attempts to avoid taking a random retest;

(e) All attempts to circumvent the device;

(f) If no attempts to tamper or circumvent are detected, a statement that the device has been recalibrated and no violations were found;

(g) The total number of events recorded by the data recorder since the last service visit;

(h) The number of vehicle starts; and

(i) The number of failures to start the vehicle.

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AMENDATORY SECTION(Amending WSR 04-18-059, filed 8/27/04, effective 9/27/04)

WAC 308-104-100   Occupational/temporary restricted driver's license -- Person eligible.   (1) Upon proper application, the department shall issue an occupational/temporary restricted driver's license to any person who has had his or her driver's license suspended or revoked who meets the requirements of RCW 46.20.380 and 46.20.391, provided that ((on the date of conviction for the offense on which the suspension or revocation is based or, if the suspension or revocation is based on an administrative action, on the date the suspension or revocation became effective, or, if there are multiple suspensions or revocations in effect, on the date of conviction for the offense on which the first suspension or revocation is based or on the date the first suspension or revocation based on an administrative action became effective)):

(a) The person had ((an unexpired)) previously been issued a valid driver's license; and

(b) ((The person did not have his or her resident driver's license or nonresident driving privilege suspended or revoked for any reason; and

(c))) The person had not been required to surrender his or her Washington driver's license to the department for failure to maintain proof of financial responsibility for the future.

(2) ((No person may petition for, and the department shall not issue, an occupational/temporary restricted driver's license that is effective during:

(a) The first thirty days of any suspension or denial imposed under RCW 46.20.3101 (2)(a) or (3)(a);

(b) The first ninety days of any revocation or denial imposed under RCW 46.20.3101 (1)(a); or

(c) The first year of any revocation or denial imposed under RCW 46.20.3101 (1)(b), (2)(b), or (3)(b).

(3))) Notwithstanding the provisions of this section, an occupational/temporary restricted driver's license shall not be issued for the operation of a commercial motor vehicle when the commercial driver has had his or her license suspended, revoked, or denied, or has been disqualified from operating a commercial motor vehicle.

[Statutory Authority: RCW 46.01.110 and 46.20.391 (1)(c). 04-18-059, 308-104-100, filed 8/27/04, effective 9/27/04. Statutory Authority: RCW 46.01.110. 00-18-070, 308-104-100, filed 9/1/00, effective 10/2/00. Statutory Authority: RCW 46.01.110 and 1989 c 178 3, 5, 8 and 16. 89-18-003, 308-104-100, filed 8/24/89, effective 9/24/89. Statutory Authority: RCW 46.20.391, 46.01.110 and 46.65.020. 86-07-018 (Order DS 2), 308-104-100, filed 3/12/86. Statutory Authority: RCW 46.01.110. 82-03-046 (Order 668 DOL), 308-104-100, filed 1/19/82; Order MV 349, 308-104-100, filed 1/28/76.]


AMENDATORY SECTION(Amending WSR 04-18-059, filed 8/27/04, effective 9/27/04)

WAC 308-104-105   Occupational/temporary restricted license denial hearings.   (1) Upon notification by the department that an occupational/temporary restricted driver's license has been denied under RCW 46.20.391 the aggrieved person may request a formal hearing to contest the department's decision. No hearing need be granted where the department is prevented from issuing an occupational/temporary restricted driver's license by rule or law. A request for a hearing must be submitted in writing.

(2) Within ten days of receipt of a request for a hearing, the department shall notify the requester in writing of the time and location of the hearing. The hearing may be held either in the person's county of residence or in any county adjoining the person's county of residence, except that all or part of the hearing may, at the discretion of the department, be conducted by telephone or other electronic means.

(3) The hearing shall be conducted by a hearing officer appointed by the director. The director may delegate the authority to render final decisions to the hearing officer.

(4) The scope of the hearing shall be limited to the following issues:

(a) Whether the person had previously been issued a valid license ((on date of conviction or, if the suspension or revocation is based on an administrative action, on the date the suspension or revocation became effective, or, if there are multiple suspensions or revocations in effect, on the date of conviction for the offense on which the first suspension or revocation is based or on the date the first suspension or revocation based on an administrative action became effective)).

(b) Whether the suspension or revocation giving rise to the application for an occupational/temporary restricted driver's license is one for which an occupational/temporary restricted driver's license may be issued under RCW 46.20.391.

(c) Whether the person has committed an offense of vehicular assault or vehicular homicide within the seven years immediately preceding the conviction or incident for which the occupational/temporary restricted driver's license is requested or, if there are multiple suspensions or revocations in effect, within the seven years immediately preceding the latest conviction or incident for which the occupational/temporary restricted driver's license is requested.

(d) Whether the person is currently suspended or revoked for any reason for which an occupational/temporary restricted driver's license is not available.

(e) Whether it is necessary that the person operate a motor vehicle because he or she:

(i) Is engaged in an occupation or trade that makes it essential that the person operate a motor vehicle. For purposes of this section, occupation or trade means being self-employed, or in the employ of another, for monetary compensation;

(ii) Is undergoing continuing health care or providing continuing care to another who is dependent upon the person;

(iii) Is enrolled in an educational institution and pursuing a course of study leading to a diploma, degree, or other certification of successful educational completion;

(iv) Is undergoing substance abuse treatment or is participating in meetings in a twelve-step group such as Alcoholics Anonymous that requires the person to drive to or from the treatment or meetings;

(v) Is fulfilling court-ordered community service responsibilities;

(vi) Is in a program that assists persons who are enrolled in a WorkFirst program pursuant to chapter 74.08A RCW to become gainfully employed and the program requires a driver's license;

(vii) Is in an apprenticeship, on-the-job training, or welfare-to-work program; or

(viii) Presents evidence that he or she has applied for a position in an apprenticeship or on-the-job training program for which a driver's license is required to begin the program.

(5) The person's official driving record provided to the hearing officer by the department shall be prima facie evidence of the issues contained in subsection (4)(a) through (d) of this section unless the person presents clear and convincing evidence to the contrary.

(6) The person shall have the burden of proving that he or she meets one or more of the qualifying circumstances described in subsection (4)(e) of this section that makes it essential to operate a motor vehicle.

(7) In the event that the person fails to appear for the hearing, no hearing shall be held. The case shall be remanded to the department and the department's previous decision denying the occupational/temporary restricted driver's license shall be affirmed.

[Statutory Authority: RCW 46.01.110 and 46.20.391 (1)(c). 04-18-059, 308-104-105, filed 8/27/04, effective 9/27/04. Statutory Authority: RCW 46.01.110. 00-18-070, 308-104-105, filed 9/1/00, effective 10/2/00. Statutory Authority: RCW 46.01.110 and 1989 c 178 3, 5, 8 and 16. 89-18-003, 308-104-105, filed 8/24/89, effective 9/24/89. Statutory Authority: RCW 46.20.391, 46.01.110 and 46.65.020. 86-07-018 (Order DS 2), 308-104-105, filed 3/12/86.]

Washington State Code Reviser's Office