BP BHEAD INT S

AN ACT Relating to the time limitation on the analysis of blood and breath alcohol; and amending RCW 46.61.502, 46.61.504, and 46.61.506.

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:

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~~)), and:

(1) The person has 0.10 grams or more of alcohol per two hundred ten liters of breath, at the time of analysis, as shown by analysis of the person's breath made under RCW 46.61.506; or

(2) The person has 0.10 percent or more by weight of alcohol in the person's blood at the time of analysis as shown by analysis of the person's blood made under RCW 46.61.506; or

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

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

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

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~~)), and:

(1) The person has 0.10 grams or more of alcohol per two hundred ten liters of breath, at the time of analysis, as shown by analysis of the person's breath made under RCW 46.61.506; or

(2) The person has 0.10 percent or more by weight of alcohol in the person's blood at the time of analysis, as shown by analysis of the person's blood made under RCW 46.61.506; or

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

(4) 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. 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, 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 on samples obtained within two hours of the alleged offense 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.

(7) If proven by a preponderance of the evidence, it is an affirmative defense to a violation of RCW 46.61.502 and 46.61.504 that the person consumed a sufficient quantity of alcohol after the time of actual driving or being in actual physical control of a motor vehicle and before the administration of an analysis of the person's breath or blood made under this section to cause the defendant's alcohol concentration to be .10 or more, as defined in RCW 46.61.502(1) and (2) and 46.61.504(1) and (2). However, evidence of this defense may not be admitted unless notice is given to the prosecution prior to the omnibus or pretrial hearing in the matter.

(8) Subsections (1) through (7) of this section do not limit the introduction of other competent evidence bearing upon the question of whether or not the person was under the influence of intoxicating liquor or any drug, pursuant to an analysis of the person's breath or blood made under this section and defined in RCW 46.61.502(1) and (2) including analyses of samples that are obtained more than two hours after the alleged driving or actual physical control of a motor vehicle.