S-1053

AN ACT Relating to changing the blood and breath alcohol content standards for intoxication for those persons under the age of twenty-one; amending RCW 46.61.502, 46.61.504, 46.61.506, and 9.41.098; and reenacting and amending RCW 88.02.095.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 46.61.502 and 1987 c 373 s 2 are each amended to read as follows:

(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state while:

((~~(1)~~)) (a) The person has ((~~0.10 grams or more of alcohol per two hundred ten liters of breath~~)) alcohol in his or her breath at or above the alcohol concentration standard defined in subsection (2) of this section, as shown by analysis of the person's breath made under RCW 46.61.506; or

((~~(2)~~)) (b) The person has ((~~0.10 percent or more by weight of alcohol in the person's blood~~)) alcohol in his or her blood at or above the alcohol concentration standard defined in subsection (2) of this section as shown by analysis of the person's blood made under RCW 46.61.506; or

((~~(3)~~)) (c) The person is under the influence of or affected by intoxicating liquor or any drug; or

((~~(4)~~)) (d) The person is under the combined influence of or affected by intoxicating liquor and any drug.

(2) "Alcohol concentration standard" means:

(a) For a person under the age of twenty-one years:

(i) Any amount more than 0.04 grams of alcohol per two hundred ten liters of breath; or

(ii) Any more than 0.04 percent by weight of alcohol in the blood; and

(b) For a person age twenty-one years or older:

(i) 0.08 grams of alcohol per two hundred ten liters of breath; or

(ii) 0.08 percent by weight of alcohol in the blood.

(3) The fact that any person charged with a violation of this section is or has been entitled to use ((~~such~~)) a drug under the laws of this state shall not constitute a defense against any charge of violating this section.

Sec. 2. RCW 46.61.504 and 1987 c 373 s 3 are each amended to read as follows:

(1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state while:

((~~(1)~~)) (a) The person has ((~~0.10 grams or more of alcohol per two hundred ten liters of breath~~)) alcohol in his or her breath at or above the alcohol concentration standard defined in RCW 46.61.502, as shown by analysis of the person's breath made under RCW 46.61.506; or

((~~(2)~~)) (b) The person has ((~~0.10 percent or more by weight of alcohol in the person's blood~~)) alcohol in his or her blood at or above the alcohol concentration standard defined in RCW 46.61.502, as shown by analysis of the person's blood made under RCW 46.61.506; or

((~~(3)~~)) (c) The person is under the influence of or affected by intoxicating liquor or any drug; or

((~~(4)~~)) (d) The person is under the combined influence of or affected by intoxicating liquor and any drug.

(2) The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section. No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.

Sec. 3. RCW 46.61.506 and 1987 c 373 s 4 are each amended to read as follows:

(1) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or any drug, if the amount of alcohol in the person's blood or breath at the time alleged as shown by analysis of his blood or breath is less than ((~~0.10 percent by weight of alcohol in his blood or 0.10 grams of alcohol per two hundred ten liters of the person's breath~~)) the alcohol concentration standard defined in RCW 46.61.502, it is evidence that may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any drug.

(2) The breath analysis shall be based upon grams of alcohol per two hundred ten liters of breath. The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor or any drug.

(3) Analysis of the person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist.

(4) When a blood test is administered under the provisions of RCW 46.20.308, the withdrawal of blood for the purpose of determining its alcoholic content may be performed only by a physician, a registered nurse, or a qualified technician. This limitation shall not apply to the taking of breath specimens.

(5) The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.

(6) Upon the request of the person who shall submit to a test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.

Sec. 4. RCW 9.41.098 and 1989 c 222 s 8 are each amended to read as follows:

(1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:

(a) Found concealed on a person not authorized by RCW 9.41.060 or 9.41.070 to carry a concealed pistol: PROVIDED, That it is an absolute defense to forfeiture if the person possessed a valid Washington concealed pistol license within the preceding two years and has not become ineligible for a concealed pistol license in the interim. Before the firearm may be returned, the person must pay the past due renewal fee and the current renewal fee;

(b) Commercially sold to any person without an application as required by RCW 9.41.090;

(c) Found in the possession or under the control of a person at the time the person committed or was arrested for committing a crime of violence or a crime in which a firearm was used or displayed or a felony violation of the uniform controlled substances act, chapter 69.50 RCW;

(d) Found concealed on a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, having ((~~0.10 grams or more of alcohol per two hundred ten liters of breath or 0.10 percent or more by weight of alcohol in the person's blood~~)) alcohol in his or her breath or blood at or above the alcohol concentration standard defined in RCW 46.61.502, as shown by analysis of the person's breath, blood, or other bodily substance;

(e) Found in the possession of a person prohibited from possessing the firearm under RCW 9.41.040;

(f) Found in the possession of a person free on bail or personal recognizance pending trial, appeal, or sentencing for a crime of violence or a crime in which a firearm was used or displayed, except that violations of Title 77 RCW shall not result in forfeiture under this section;

(g) Found in the possession of a person found to have been mentally incompetent while in possession of a firearm when apprehended or who is thereafter committed pursuant to chapter 10.77 or 71.05 RCW;

(h) Known to have been used or displayed by a person in the violation of a proper written order of a court of general jurisdiction; or

(i) Known to have been used in the commission of a crime of violence or a crime in which a firearm was used or displayed or a felony violation of the uniformed controlled substances act, chapter 69.50 RCW.

(2) Upon order of forfeiture, the court in its discretion shall order destruction of any firearm that is illegal for any person to possess. All firearms legal for citizen possession that are judicially forfeited or forfeited due to failure to make a claim under RCW 63.32.010, 63.40.010, or 63.35.020 shall be submitted for auction to commercial sellers once a year if the submitting agency has accumulated at least ten firearms authorized for sale. Law enforcement agencies may conduct joint auctions for the purpose of maximizing efficiency. A maximum of ten percent of such firearms may be retained for use by local law enforcement agencies and the Washington state patrol. Before submission for auction, a court may temporarily retain forfeited firearms if needed for evidence. The proceeds from any sale shall be divided as follows: The local jurisdiction and the Washington state patrol shall retain its costs, including actual costs of storage and sale, and shall forward the remainder to the state department of wildlife for use in its firearms training program pursuant to RCW 77.32.155.

If a firearm is delivered to a law enforcement agency and the agency no longer requires use of the firearm, the agency shall dispose of the firearm by auction as provided by this subsection. The public auctioning agency shall, as a minimum, maintain a record of all forfeited firearms by manufacturer, model, caliber, serial number, date and circumstances of forfeiture, and final disposition. The records shall be open to public inspection and copying.

(3) The court shall order the firearm returned to the owner upon a showing that there is no probable cause to believe a violation of subsection (1) of this section existed or the firearm was stolen from the owner or the owner neither had knowledge of nor consented to the act or omission involving the firearm which resulted in its forfeiture.

(4) A law enforcement officer of the state or of any county or municipality may confiscate a firearm found to be in the possession of a person under circumstances specified in subsection (1) of this section. After confiscation, the firearm shall not be surrendered except: (a) To the prosecuting attorney for use in subsequent legal proceedings; (b) for disposition according to an order of a court having jurisdiction as provided in subsection (1) of this section; or (c) to the owner if the proceedings are dismissed or as directed in subsection (3) of this section.

Sec. 5. RCW 88.02.095 and 1990 c 231 s 3 & 1990 c 31 s 1 are each reenacted and amended to read as follows:

(1) It shall be unlawful for any person to operate a vessel in a negligent manner. For the purpose of this section, to "operate in a negligent manner" shall be construed to mean the operation of a vessel in such manner as to endanger or be likely to endanger any persons or property or to operate at a rate of speed greater than will permit the operator in the exercise of reasonable care to bring the vessel to a safe stop.

(2) A person is guilty of operating a vessel while under the influence of intoxicating liquor or any drug if the person operates a vessel within this state while:

(a) The person has ((~~0.10 grams or more of alcohol per two hundred ten liters of breath~~)) alcohol in his or her breath at or above the alcohol concentration standard defined in RCW 46.61.502, as shown by analysis of the person's breath made under RCW 46.61.506; or

(b) The person has ((~~0.10 percent or more by weight of alcohol in the person's blood~~)) alcohol in his or her blood at or above the alcohol concentration standard defined in RCW 46.61.502, as shown by analysis of the person's blood made under RCW 46.61.506; or

(d) The person is under the combined influence of or affected by intoxicating liquor and any drug.

The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section. A person cited under this subsection may upon request be given a breath test for breath alcohol or may request to have a blood sample taken for blood alcohol analysis. An arresting officer shall administer field sobriety tests when circumstances permit.

(3) For the purposes of this section, "vessel" means any watercraft used or capable of being used as a means of transportation on the water, other than a seaplane.

(4) For the purpose of this section, "vessel operator" means a person who is in actual physical control of a vessel.

(5) A violation of this section is a misdemeanor, punishable by up to ninety days in jail and by a fine of not more than one thousand dollars. In addition, the court may order the defendant to pay restitution for any damages or injuries resulting from the offense.