WSR 10-21-096

PROPOSED RULES

DEPARTMENT OF LICENSING


[ Filed October 20, 2010, 8:44 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 10-18-047.

Title of Rule and Other Identifying Information: Chapter 308-107 WAC, Ignition interlock driver's licenses.

Hearing Location(s): Highways-Licenses Building, Conference Room 413, 1125 Washington Street S.E., Olympia, WA (check in at counter on first floor), on November 23, 2010, at 3:00 p.m.

Date of Intended Adoption: November 24, 2010.

Submit Written Comments to: Clark J. Holloway, P.O. Box 9030, Olympia, WA 98507-9030, e-mail cholloway@dol.wa.gov, fax (360) 586-8351, by November 22, 2010.

Assistance for Persons with Disabilities: Contact Clark J. Holloway by November 22, 2010, TTY (360) 664-0116.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Update rules to conform to recent legislative changes and to streamline procedures. Rules amended are:

WAC 308-107-010, amended to include company contractors in definition of "authorized service provider" or "ignition interlock vendor."

WAC 308-107-020, amended to delete provision pertaining to ignition interlock requirement for alcohol-related deferred prosecutions in order to conform to statute change.

WAC 308-107-040, amended to streamline procedure.

WAC 308-107-050, amended to clarify and to extend maximum term of agreements with ignition interlock device manufacturers for collection of required fees.

WAC 308-107-070, amended to clarify procedures and to conform to statute change.

Reasons Supporting Proposal: Necessary to conform to legislative changes made in chapter 269, Laws of 2010.

Statutory Authority for Adoption: RCW 46.01.110 and 46.20.385.

Statute Being Implemented: RCW 46.20.385.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of licensing, governmental.

Name of Agency Personnel Responsible for Drafting: Clark J. Holloway, Highways-Licenses Building, Olympia, Washington, (360) 902-3846; Implementation and Enforcement: Doron Maniece, Highways-Licenses Building, Olympia, Washington, (360) 902-3850.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required pursuant to RCW 19.85.025(3).

A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to this proposed rule under the provisions of RCW 34.05.328 (5)(a)(i).

October 20, 2010

Walt Fahrer

Rules Coordinator


AMENDATORY SECTION(Amending WSR 08-24-059, filed 11/26/08)

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, company, or contractor to a 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.

[Statutory Authority: RCW 46.01.110, 46.20.385, 46.20.391, and 46.20.745. 08-24-059, 308-107-010, filed 11/26/08, effective 1/1/09.]


AMENDATORY SECTION(Amending WSR 09-19-086, filed 9/18/09)

WAC 308-107-020   Ignition interlock driver's license -- Application -- License term.   (1) A person applying for an ignition interlock driver's license must meet the requirements of RCW 46.20.380 and 46.20.385, and submit the following:

(a) A nonrefundable application fee of one hundred dollars;

(b) An application on a form provided by the department;

(c) Satisfactory proof of financial responsibility under chapter 46.29 RCW; and

(d) Proof from an installer approved by the department that a functioning ignition interlock device has been installed.

If all the requirements for an ignition interlock driver's license are not met within thirty days after the application has been accepted by the department, the license will be denied.

(2) ((In the event of an alcohol-related deferred prosecution, the ignition interlock driver's license requirement shall extend for a two-year term from the date the deferral was granted.

(3))) Reapplication for the ignition interlock driver's license may be required whenever a new administrative suspension or revocation is imposed.

[Statutory Authority: RCW 46.01.110 and 46.20.385. 09-19-086, 308-107-020, filed 9/18/09, effective 10/19/09. Statutory Authority: RCW 46.01.110, 46.20.385, 46.20.391, and 46.20.745. 08-24-059, 308-107-020, filed 11/26/08, effective 1/1/09.]


AMENDATORY SECTION(Amending WSR 08-24-059, filed 11/26/08)

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)) Notice from a law enforcement officer or agency ((made under RCW 9A.72.085)) indicating that a device has been disabled, ((or)) removed, or is not functioning 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.

[Statutory Authority: RCW 46.01.110, 46.20.385, 46.20.391, and 46.20.745. 08-24-059, 308-107-040, filed 11/26/08, effective 1/1/09.]


AMENDATORY SECTION(Amending WSR 08-24-059, filed 11/26/08)

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)) may include, but not be limited to((,));

(a) Violation of the agreement((,));

(b) Violation of the laws and rules governing the installation of devices((, and)); or

(c) Violation of this chapter.

An agreement between the department and a manufacturer will be valid for no more than ((two)) four years, provided that the department may extend an agreement for up to an additional ((two)) four 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.

[Statutory Authority: RCW 46.01.110, 46.20.385, 46.20.391, and 46.20.745. 08-24-059, 308-107-050, filed 11/26/08, effective 1/1/09.]


AMENDATORY SECTION(Amending WSR 08-24-059, filed 11/26/08)

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. A request for a hearing must be submitted in writing.

(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 Washington state driver's license, or is in the military, stationed in Washington state, and has a valid home state 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))) (d) 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.

[Statutory Authority: RCW 46.01.110, 46.20.385, 46.20.391, and 46.20.745. 08-24-059, 308-107-070, filed 11/26/08, effective 1/1/09.]

Washington State Code Reviser's Office