BP BHEAD INT S

AN ACT Relating to crimes involving alcohol, drugs, or mental problems; amending RCW 10.05.010, 10.05.020, 10.05.060, 10.05.090, 10.05.100, 10.05.120, 10.05.140, 10.05.160, 10.05.170, 46.20.291, 46.20.308, 46.20.311, 46.61.502, 46.61.504, 46.61.506, 46.61.515, and 46.61.5151; reenacting and amending RCW 46.61.515; adding a new section to chapter 46.20 RCW; prescribing penalties; providing an effective date; and providing an expiration date.

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

Sec. 1. RCW 10.05.010 and 1985 c 352 s 4 are each amended to read as follows:

In a court of limited jurisdiction a person charged with a misdemeanor or gross misdemeanor may petition the court to be considered for a deferred prosecution program. The petition shall be filed with the court at least seven days before the date set for trial but, upon a written motion and affidavit establishing good cause for the delay and failure to comply with this section, the court may waive this requirement subject to the defendant's reimbursement to the court of the witness fees and expenses due for subpoenaed witnesses who have appeared on the date set for trial.

A person charged with a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020. Such person shall not be eligible for a deferred prosecution program more than once ((~~in any five-year period~~)). Separate offenses committed more than seven days apart may not be consolidated in a single program.

Sec. 2. RCW 10.05.020 and 1985 c 352 s 6 are each amended to read as follows:

(1) The petitioner shall allege under oath in the petition that the wrongful conduct charged is the result of or caused by alcoholism, drug addiction, or mental problems for which the person is in need of treatment and unless treated the probability of future reoccurrence is great, along with a statement that the person agrees to pay the cost of a diagnosis and treatment of the alleged problem or problems if financially able to do so. The petition shall also contain a case history and written assessment prepared by an approved ((~~alcoholism~~)) treatment ((~~facility~~)) program as designated in chapter 70.96A RCW if the petition alleges alcoholism((~~, an approved drug program as designated in chapter 71.24 RCW if the petition alleges~~)) or drug addiction, or by ((~~an approved mental health center~~)) a licensed service provider as designated in chapter 71.24 RCW if the petition alleges a mental problem.

The secretary of social and health services shall periodically provide to courts of limited jurisdiction a list of the approved treatment programs and licensed service providers in the county in which the court is located. The case history and written assessment shall not be prepared by the same approved treatment program or licensed service provider that proposes to administer the treatment plan, unless only one approved treatment program or licensed service provider exists in the county in which the court is located. The court shall not approve the treatment plan unless the approved treatment program or licensed service provider preparing the case history and written assessment and the approved treatment program or licensed service provider proposing to administer the plan both are on the list provided by the secretary of social and health services.

(2) Before entry of an order deferring prosecution, a petitioner shall be advised of his or her rights as an accused and execute, as a condition of receiving treatment, a statement that contains: (a) An acknowledgement of his or her rights; (b) a stipulation to the admissibility of the facts contained in the written police report; and (c) an acknowledgement that the statement will be entered and used to support a finding of guilty if the court finds cause to revoke the order granting deferred prosecution. The petitioner shall also be advised that he or she may, if he or she proceeds to trial and is found guilty, be allowed to seek suspension of some or all of the fines and incarceration that may be ordered upon the condition that he or she seek treatment and, further, that he or she may seek treatment from public and private agencies at any time without regard to whether or not he or she is found guilty of the offense charged. He or she shall also be advised that the court will not accept a petition for deferred prosecution from a person who sincerely believes that he or she is innocent of the charges or sincerely believes that he or she does not, in fact, suffer from alcoholism, drug addiction, or mental problems.

(3) Before entering an order deferring prosecution, the court shall make specific findings that: (a) The petitioner has stipulated to the admissibility of the facts as contained in the written police report; (b) the petitioner has acknowledged the admissibility of the stipulated facts in any criminal hearing or trial on the underlying offense or offenses held subsequent to revocation of the order granting deferred prosecution; and (c) the petitioner's statements were made knowingly and voluntarily. Such findings shall be included in the order granting deferred prosecution.

Sec. 3. RCW 10.05.060 and 1990 c 250 s 13 are each amended to read as follows:

If the report recommends treatment, the court shall examine the treatment plan. If it approves the plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost thereof, if able to do so, or arrange for the treatment, an entry shall be made upon the person's court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan shall be attached to the docket, which shall then be removed from the regular court dockets and filed in a special court deferred prosecution file. If the charge be one that an abstract of the docket showing the charge and the date of petitioner's acceptance is required to be sent to the department of licensing, an abstract shall be sent, and the department of licensing shall make an entry of the charge and of the petitioner's acceptance for deferred prosecution on the department's driving record of the petitioner. The entry is not a conviction for purposes of Title 46 RCW. The department shall maintain the record for ((~~five~~)) ten years from date of entry of the order granting deferred prosecution.

Sec. 4. RCW 10.05.090 and 1985 c 352 s 12 are each amended to read as follows:

If a petitioner((,)) who has been accepted for a deferred prosecution((,)) fails or neglects to carry out and fulfill any term or condition of the petitioner's treatment plan, the ((~~facility, center, institution, or agency~~)) approved treatment program or licensed service provider administering the treatment plan shall immediately report such breach to the court, the probation department, the prosecutor, and the petitioner or petitioner's attorney of record, together with its recommendation. If the approved treatment program or licensed service provider fails to report the petitioner's breach as required by this section, the court, the probation department, or the prosecutor may notify the secretary of the department of social and health services of such failure to report. The court upon receiving such a report shall hold a hearing to determine whether the petitioner should be removed from the deferred prosecution program. At the hearing, evidence shall be taken of the petitioner's alleged failure to comply with the treatment plan and the petitioner shall have the right to present evidence on his or her own behalf. The court shall either order that the petitioner continue on the treatment plan or be removed from deferred prosecution. If removed from deferred prosecution, the court shall enter judgment pursuant to RCW 10.05.020.

Sec. 5. RCW 10.05.100 and 1985 c 352 s 13 are each amended to read as follows:

If a petitioner is subsequently convicted of a similar offense while in a deferred prosecution program, upon notice the court shall remove the petitioner's docket from the deferred prosecution file and the court shall enter judgment pursuant to RCW 10.05.020. For the purposes of this section, a "similar offense" to a violation of RCW 46.61.502 or 46.61.504 includes any criminal traffic offense.

Sec. 6. RCW 10.05.120 and 1985 c 352 s 15 are each amended to read as follows:

((~~Upon proof of successful completion of the two-year treatment program, the court shall dismiss the charges pending against the petitioner.~~))

Five years from the date of the court's approval of a deferred prosecution program for an individual petitioner, the court shall dismiss the charges pending against the petitioner upon proof of successful completion of the two-year treatment program and verification that the petitioner has not been convicted of a similar offense during the five-year period of deferred prosecution.

((~~Five~~)) Ten years from the date of the court's approval of a deferred prosecution program for an individual petitioner, those entries that remain in the department of licensing records relating to such petitioner shall be removed. A deferred prosecution ((~~may~~)) shall be considered for enhancement purposes when imposing mandatory penalties and suspensions under RCW 46.61.515 for subsequent offenses within a five-year period.

Sec. 7. RCW 10.05.140 and 1991 c 247 s 1 are each amended to read as follows:

As a condition of granting a deferred prosecution petition for a violation of RCW 46.61.502 or 46.61.504, the court shall order that the petitioner ((~~shall~~)): (i) Not operate a motor vehicle ((~~upon the public highways~~)) within this state without a valid operator's license and proof of ((~~liability insurance~~)) financial responsibility for the future, as defined in RCW 46.29.260; (ii) not drive a motor vehicle within this state while having any measurable alcohol in his or her breath or blood within two hours after driving; and (iii) not refuse to submit to a test of his or her breath or blood to determine alcohol concentration upon request of a law enforcement officer who has reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490. As a condition of granting a deferred prosecution petition, the court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160. The court ((~~may~~)) shall terminate the deferred prosecution program upon violation of any of the conditions authorized or required by this section.

Sec. 8. RCW 10.05.160 and 1985 c 352 s 18 are each amended to read as follows:

The prosecutor may appeal an order granting deferred prosecution on any or all of the following grounds:

(1) Prior deferred prosecution has been granted to the defendant ((~~within five years~~));

(2) Failure of the court to obtain proof of insurance or a treatment plan conforming to the requirements of this chapter;

(3) Failure of the court to comply with the requirements of RCW 10.05.100 or 10.05.140;

(4) Failure of the evaluation facility to provide the information required in RCW 10.05.040 and 10.05.050, if the defendant has been referred to the facility for treatment. If an appeal on such basis is successful, the trial court may consider the use of another treatment ((~~facility~~)) program.

Sec. 9. RCW 10.05.170 and 1991 c 247 s 2 are each amended to read as follows:

As a condition of granting deferred prosecution, the court ((~~may~~)) shall order supervision of the petitioner during the period of deferral and may levy a monthly assessment upon the petitioner as provided in RCW 10.64.120. In a jurisdiction with a probation department, the court ((~~may~~)) shall appoint the probation department to supervise the petitioner. In a jurisdiction without a probation department, the court ((~~may~~)) shall appoint an appropriate person or agency to supervise the petitioner. A supervisor appointed under this section shall be required to do at least the following:

(1) If the charge for which deferral is granted relates to operation of a motor vehicle, at least once every six months request from the department of licensing an abstract of the petitioner's driving record and notify the court if the petitioner has been convicted of any criminal traffic offense; and

(2) At least once every month make contact with the petitioner or with any agency to which the petitioner has been directed for treatment as a part of the deferral to determine the petitioner's compliance with the treatment plan and notify the court if the petitioner has failed or neglected to carry out and fulfill any term or condition of the treatment plan.

NEW SECTION. Sec. 10. A new section is added to chapter 46.20 RCW to read as follows:

(1) Whenever any person is arrested for any offense where:

(a) At the time of the arrest, the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor;

(b) The arrested person received the warnings as provided in RCW 46.20.308(2) or has been deemed to have received the warnings as provided in RCW 46.20.308(4); and

(c) The arrested person either (i) refused to submit to a test of his or her breath or blood to determine its alcohol concentration, or (ii) the result of the test showed an alcohol concentration of the person's breath or blood of 0.08 or more within two hours after the driving or being in actual physical control of a motor vehicle within this state;

the arresting officer or other law enforcement officer at whose direction any test has been given shall:

(A) Serve notice in writing on the person on behalf of the department of licensing that (I) the department intends to suspend, revoke, or deny the person's license, permit, or privilege to drive as provided by RCW 46.20.308 (6) or (7), (II) the person has a right to a hearing to contest the suspension, revocation, or denial of his or her license, permit, or privilege to drive as provided by RCW 46.20.308(8), (III) to obtain a hearing, the person must pay a fee of one hundred dollars, and (IV) the person must request such a hearing in writing within seven days of the date of arrest or the right to such a hearing will be lost. If the request is made by mail, the request must be postmarked within seven days of the date of arrest;

(B) Confiscate the person's Washington state license or permit to drive, if any;

(C) Issue a temporary license or permit to drive as provided by subsection (2) of this section to any driver who surrenders a current and valid Washington state license or permit to drive; and

(D) Immediately notify the department of the arrest and transmit to the department any confiscated license or permit to drive and the report required by RCW 46.20.308 (6) or (7).

(2) Any temporary license or permit to drive issued under subsection (1) of this section shall state that it is valid beginning twelve hours after the time of the person's arrest and remains valid only until the sooner of:

(a) The expiration date of the confiscated license or permit to drive; or

(b) The date the suspension, revocation, or denial of the person's license, permit, or privilege to drive is sustained after a hearing provided under RCW 46.20.308(8); or

(3) The department shall provide law enforcement agencies with temporary license or permit forms to use under subsection (1) of this section.

Sec. 11. RCW 46.20.291 and 1993 c 501 s 4 are each amended to read as follows:

The department is authorized to suspend the license of a driver upon a showing by its records or other sufficient evidence that the licensee:

(1) Has committed an offense for which mandatory revocation or suspension of license is provided by law or has violated a mandatory condition of probation imposed under RCW 46.61.515;

(2) Has, by reckless or unlawful operation of a motor vehicle, caused or contributed to an accident resulting in death or injury to any person or serious property damage;

(3) Has been convicted of offenses against traffic regulations governing the movement of vehicles, or found to have committed traffic infractions, with such frequency as to indicate a disrespect for traffic laws or a disregard for the safety of other persons on the highways;

(4) Is incompetent to drive a motor vehicle under RCW 46.20.031(3); ((or))

(5) Has failed to respond to a notice of traffic infraction, failed to appear at a requested hearing, violated a written promise to appear in court, or has failed to comply with the terms of a notice of traffic infraction or citation, as provided in RCW 46.20.289; ((or))

(6) Has committed one of the prohibited practices relating to drivers' licenses defined in RCW 46.20.336; or

(7) Submitted to a test of his or her breath or blood for alcohol concentration pursuant to RCW 46.20.308 and a result of that test showed an alcohol concentration of the person's breath or blood of 0.08 or more within two hours after driving or being in actual physical control of a motor vehicle in this state.

Sec. 12. RCW 46.20.308 and 1989 c 337 s 8 are each amended to read as follows:

(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcoholic content of his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor.

(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. However, in those instances where: (a) The person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample; or (b) as a result of a traffic accident the person is being treated for a medical condition in a hospital, clinic, doctor's office, or other similar facility in which a breath testing instrument is not present, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(4). The officer shall inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the ((~~driver~~)) person that (a) his or her license, permit, or privilege to drive will be revoked or denied if he or she refuses to submit to the test, ((~~and~~)) (b) ((~~that~~)) his or her license, permit, or privilege to drive will be suspended, revoked, or denied if result of the test shows an alcohol concentration of his or her breath or blood of 0.08 or more within two hours after driving or being in actual physical control of a motor vehicle within this state, and (c) his or her refusal to take the test may be used in a criminal trial.

(3) Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which another person has been injured and there is a reasonable likelihood that such other person may die as a result of injuries sustained in the accident, a breath or blood test may be administered without the consent of the individual so arrested.

(4) Any person who is dead, unconscious, or who is otherwise in a condition rendering him or her incapable of refusal, shall be deemed not to have withdrawn the consent provided by subsection (1) of this section and the test or tests may be administered, subject to the provisions of RCW 46.61.506, and the person shall be deemed to have received the warnings required under subsection (2) of this section.

(5) If, following his or her arrest and receipt of warnings under subsection (2) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath or blood, no test shall be given except as authorized under subsection (3) or (4) of this section.

(6) The department of licensing, upon the receipt of a sworn report of the law enforcement officer or a report of the law enforcement officer under a declaration authorized by RCW 9A.72.085 that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor and that the person had refused to submit to the test or tests upon the request of the law enforcement officer after ((~~being informed that refusal would result in the revocation of the person's privilege to drive~~)) receiving the warnings as provided in subsection (2) of this section, shall revoke or deny the person's license ((or)), permit, or privilege to drive ((~~or any nonresident operating privilege~~)). The revocation or denial shall be effective the date the revocation or denial is sustained after a hearing provided under subsection (8) of this section or thirty days after the date of the person's arrest, whichever is sooner.

(7) ((Upon revoking the license or permit to drive or the nonresident operating privilege of any person, the department shall immediately notify the person involved in writing by personal service or by certified mail of its decision and the grounds therefor, and of the person's right to a hearing, specifying the steps he or she must take to obtain a hearing. Within fifteen days after the notice has been given, the person may, in writing, request a formal hearing.)) The department of licensing, upon the receipt of a sworn report of the law enforcement officer or a report of the law enforcement officer under a declaration authorized by RCW 9A.72.085 that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor, the person submitted to a test upon the request of the law enforcement officer after receiving the warnings as provided in subsection (2) of this section or was administered the test without the person's consent as provided in subsection (3) of this section and the result of the test showed an alcohol concentration of the person's breath or blood of 0.08 or more within two hours after driving or being in actual physical control of a motor vehicle within this state, shall suspend, revoke, or deny the person's license, permit, or privilege to drive. Upon the first such report within five years, the period of suspension or denial shall be until the person reaches age nineteen or ninety days, whichever is longer. Upon the second such report within five years, the period of revocation or denial shall be one year. Upon the third or subsequent report within five years, the period of revocation or denial shall be two years. For any report for which the result of the test showed an alcohol concentration of the person's breath or blood of 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state, the period of suspension, revocation, or denial shall be increased by ninety days.

The suspension, revocation, or denial shall be effective the date the suspension, revocation, or denial is sustained after a hearing provided in subsection (8) of this section or thirty days after the date of the person's arrest, whichever is sooner. The suspension, revocation, or denial shall be stayed if the person is accepted for deferred prosecution as provided in chapter 10.05 RCW for the incident upon which the suspension, revocation, or denial is based. If the deferred prosecution is terminated, the stay shall be lifted and the suspension, revocation, or denial reinstated. If the deferred prosecution is completed, the stay shall be lifted and the suspension, revocation, or denial canceled.

(8)(a) Upon timely receipt of ((~~such~~)) a request for a hearing contesting the suspension, revocation, or denial of the person's license, permit, or privilege to drive, along with the fee, the department shall afford the person an opportunity for a hearing ((~~as provided in RCW 46.20.329 and 46.20.332~~)). An administrative law judge shall conduct the hearing, may issue subpoenas for the attendance of witnesses and the production of documents, and shall administer oaths to witnesses. The rules of evidence shall apply at the hearing. The person may be represented by counsel, may question witnesses, may present evidence, and may testify. The hearing shall be recorded and shall be conducted in the county of the arrest. ((~~For the purposes of this section, the scope of such hearing shall cover the issues of whether~~))

The administrative law judge shall sustain a revocation or denial based on a refusal to submit to a test if the administrative law judge determines, by a preponderance of the evidence, that (i) a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor, ((~~whether~~)) (ii) the person was placed under arrest, and ((~~whether~~)) (iii) the person refused to submit to the test ((~~or tests~~)) upon request of the officer after ((having been informed that such refusal would result in the revocation of the person's privilege to drive. The department shall order that the revocation either be rescinded or sustained. Any decision by the department revoking a person's driving privilege shall be stayed and shall not take effect while a formal hearing is pending as provided in this section or during the pendency of a subsequent appeal to superior court so long as there is no conviction for a moving violation or no finding that the person has committed a traffic infraction that is a moving violation during pendency of the hearing and appeal.

~~(8)~~)) receiving the warnings as provided in subsection (2) of this section.

(b) The administrative law judge shall sustain a suspension, revocation, or denial based on a result of the test if the administrative law judge determines, by a preponderance of the evidence, that (i) a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor, (ii) the person was placed under arrest, (iii) the person submitted to the test upon request of the officer after receiving the warnings as provided in subsection (2) of this section or was administered the test without the person's consent as provided in subsection (3) of this section, and (iv) the result of the test showed an alcohol concentration of the person's breath or blood of 0.08 or more within two hours after driving or being in actual physical control of a motor vehicle within this state.

(9) If the person fails to timely request a hearing or fails to appear at a requested hearing, the right to a hearing is waived and the suspension, revocation, or denial shall be sustained.

(10) If the suspension, revocation, or denial is rescinded, the person shall be awarded the amount of the hearing fee and the department shall reissue the person's license, permit, or privilege to drive without cost. If the suspension, revocation, or denial is sustained ((~~after such a hearing~~)), the person whose license, privilege, or permit is suspended, revoked, or denied has the right to ((~~file a petition in~~)) appeal to the superior court of the county of arrest ((~~to review the final order of revocation by the department in the manner provided in RCW 46.20.334.~~

~~(9)~~)) in the same manner as an appeal from a decision of a court of limited jurisdiction. The filing of a notice of appeal does not stay the suspension, revocation, or denial. A court shall not stay the suspension, revocation, or denial unless it finds that the appellant is likely to prevail in the appeal and without a stay the appellant will suffer irreparable injury. If the court stays the suspension, revocation, or denial, it may impose conditions on such stay. The stay shall not exceed ninety days, except for good cause shown, but shall in no event exceed one hundred eighty days.

(11) When it has been finally determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this state has been suspended or revoked, the department shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he or she has a license.

Sec. 13. RCW 46.20.311 and 1993 c 501 s 5 are each amended to read as follows:

(1) The department shall not suspend a driver's license or privilege to drive a motor vehicle on the public highways for a fixed period of more than one year, except as permitted under RCW 46.20.308, 46.20.342, or 46.61.515. Except for a suspension under RCW 46.20.289 and 46.20.291(5), whenever the license or driving privilege of any person is suspended by reason of a conviction, a finding that a traffic infraction has been committed, pursuant to chapter 46.29 RCW, ((or)) pursuant to RCW 46.20.291 or 46.20.308, or because of a violation of a mandatory condition of probation imposed under RCW 46.61.515, the suspension of license or privilege to drive shall remain in effect until the person gives and thereafter maintains proof of financial responsibility for the future as provided in chapter 46.29 RCW. The department shall not issue to the person a new, duplicate, or renewal license until the person pays a reissue fee of twenty dollars. If the suspension is imposed under RCW 46.20.308 or the result of a violation of RCW 46.61.502 or 46.61.504 or a violation of a mandatory condition of probation imposed under RCW 46.61.515, the reissue fee shall be ((~~fifty~~)) one hundred dollars.

(2) Any person whose license or privilege to drive a motor vehicle on the public highways has been revoked, unless the revocation was for a cause which has been removed, is not entitled to have the license or privilege renewed or restored until: (a) After the expiration of one year from the date the license or privilege to drive was revoked; (b) after the expiration of the applicable revocation period provided by RCW 46.61.515(3) (b) or (c); (c) after the expiration of two years for persons convicted of vehicular homicide; (d) after the expiration of one year in cases of revocation for the first refusal within five years to submit to a chemical test under RCW 46.20.308; (e) after the expiration of two years in cases of revocation for the second or subsequent refusal within five years to submit to a chemical test under RCW 46.20.308; or (f) after the expiration of the applicable revocation period provided by RCW 46.20.265. After the expiration of the appropriate period, the person may make application for a new license as provided by law together with a reissue fee in the amount of twenty dollars, but if the revocation is the result of a violation of RCW 46.20.308, 46.61.502, or 46.61.504, the reissue fee shall be ((~~fifty~~)) one hundred dollars. Except for a revocation under RCW 46.20.265, the department shall not then issue a new license unless it is satisfied after investigation of the driving ability of the person that it will be safe to grant the privilege of driving a motor vehicle on the public highways, and until the person gives and thereafter maintains proof of financial responsibility for the future as provided in chapter 46.29 RCW. For a revocation under RCW 46.20.265, the department shall not issue a new license unless it is satisfied after investigation of the driving ability of the person that it will be safe to grant that person the privilege of driving a motor vehicle on the public highways.

(3) Whenever the driver's license of any person is suspended pursuant to Article IV of the nonresident violators compact or RCW 46.23.020 or 46.20.289 or 46.20.291(5), the department shall not issue to the person any new or renewal license until the person pays a reissue fee of twenty dollars. If the suspension is the result of a violation of the laws of this or any other state, province, or other jurisdiction involving (a) the operation or physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor or drugs, ((or)) (b) the refusal to submit to a ((~~chemical~~)) test of the driver's breath or blood alcohol content, or (c) the result of a test of the driver's breath or blood showing an alcohol concentration of 0.08 or more, the reissue fee shall be ((~~fifty~~)) one hundred dollars.

Sec. 14. RCW 46.61.502 and 1993 c 328 s 1 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:

(a) And the person has ((~~0.10~~)) 0.08 grams or more of alcohol per two hundred ten liters of breath within two hours after driving, as shown by analysis of the person's breath made under RCW 46.61.506; or

(b) And the person has ((~~0.10~~)) 0.08 percent or more by weight of alcohol in the person's blood within two hours after driving, as shown by analysis of the person's blood made under RCW 46.61.506; or

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

(3) It is an affirmative defense to a violation of subsection (1) (a) and (b) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be ((~~0.10~~)) 0.08 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

(4) Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had ((~~0.10~~)) 0.08 grams or more of alcohol per two hundred ten liters of breath or ((~~0.10~~)) 0.08 percent or more of alcohol in the person's blood, pursuant to subsection (1) (a) and (b) of this section, and may be used as evidence that a person was under the influence of or affected by intoxicating liquors or any drug pursuant to subsection (1) (c) and (d) of this section.

Sec. 15. RCW 46.61.504 and 1993 c 328 s 2 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:

(a) And the person has ((~~0.10~~)) 0.08 grams or more of alcohol per two hundred ten liters of breath within two hours after being in actual physical control of a motor vehicle, as shown by analysis of the person's breath made under RCW 46.61.506; or

(b) And the person has ((~~0.10~~)) 0.08 percent or more by weight of alcohol in the person's blood within two hours after being in actual physical control of a motor vehicle, as shown by analysis of the person's blood made under RCW 46.61.506; or

(d) While 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.

(3) It is an affirmative defense to a violation of subsection (1) (a) and (b) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of a motor vehicle and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be ((~~0.10~~)) 0.08 or more within two hours after being in actual physical control of a motor vehicle. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

(4) Analyses of blood or breath samples obtained more than two hours after the alleged actual physical control of a motor vehicle may be used as evidence that within two hours of the alleged actual physical control of a motor vehicle, a person had ((~~0.10~~)) 0.08 grams or more of alcohol per two hundred ten liters of breath or ((~~0.10~~)) 0.08 percent or more of alcohol in the person's blood, pursuant to subsection (1) (a) and (b) of this section, and may be used as evidence that a person was under the influence of or affected by intoxicating liquors or any drug pursuant to subsection (1) (c) and (d) of this section.

Sec. 16. 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)) concentration of the person's blood or breath at the time alleged as shown by analysis of his or her 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~~)) 0.08, 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 or her 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 her or his or her attorney.

Sec. 17. RCW 46.61.515 and 1993 c 501 s 7 and 1993 c 239 s 1 are each reenacted and amended to read as follows:

(1) ((~~Every~~)) A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 where the result of the test of the person's breath or blood showed an alcohol concentration of less than 0.15 within two hours after driving or being in actual physical control of a motor vehicle within this state shall be punished by imprisonment for not less than twenty-four consecutive hours nor more than one year, and by a fine of not less than two hundred fifty dollars and not more than one thousand dollars. A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 where the result of the test of the person's breath or blood showed an alcohol concentration of 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state or where the person refused to submit to a test of the person's breath or blood for alcohol concentration shall be punished by imprisonment for not less than forty-eight consecutive hours nor more than one year, and by a fine of not less than three hundred fifty dollars and not more than one thousand dollars. For purposes of the preceding sentence, the judge shall determine, based on a preponderance of the evidence, whether the person's alcohol concentration was 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state or whether the person refused to submit to a test of the person's breath or blood for alcohol concentration. Unless the judge finds the person to be indigent, ((~~two hundred fifty dollars of~~)) the mandatory minimum fine shall not be suspended or deferred. ((~~Twenty-four consecutive hours of~~)) The mandatory minimum jail sentence shall not be suspended or deferred unless the judge finds that the imposition of the jail sentence will pose a substantial risk to the defendant's physical or mental well-being. Whenever the mandatory minimum jail sentence is suspended or deferred, the judge must state, in writing, the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based. The court shall impose conditions of probation which include (a) not driving a motor vehicle within this state without a valid license to drive and proof of financial responsibility for the future, (b) not driving a motor vehicle within this state while having an alcohol concentration of 0.04 or more within two hours after driving, and (c) not refusing to submit to a test of his or her breath or blood to determine alcohol concentration upon request of a law enforcement officer who has reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. The court may impose conditions of probation that may include nonrepetition, alcohol or drug treatment, supervised probation, or other conditions that may be appropriate. The convicted person shall, in addition, be required to complete a course in an alcohol information school approved by the department of social and health services or more intensive treatment in a program approved by the department of social and health services, as determined by the court. A diagnostic evaluation and treatment recommendation shall be prepared under the direction of the court by an alcoholism agency approved by the department of social and health services or a qualified probation department approved by the department of social and health services. A copy of the report shall be forwarded to the department of licensing. Based on the diagnostic evaluation, the court shall determine whether the convicted person shall be required to complete a course in an alcohol information school approved by the department of social and health services or more intensive treatment in a program approved by the department of social and health services. Standards for approval for alcohol treatment programs shall be prescribed by rule under the Administrative Procedure Act, chapter 34.05 RCW. The department of social and health services shall periodically review the costs of alcohol information schools and treatment programs as part of the approval process.

For each violation of mandatory conditions of probation under (a) and (b) or (a) and (c) of this subsection, the court shall order the convicted person to be confined for not less than thirty days, which may not be suspended or deferred. Upon violation of a mandatory condition of probation, the court shall notify the department.

(2)(a) On a second ((~~or subsequent~~)) conviction ((~~for driving or being in physical control of a motor vehicle while under the influence of intoxicating liquor or drugs~~)) of a violation of RCW 46.61.502 or 46.61.504 within a five-year period where the result of the test of the person's breath or blood showed an alcohol concentration of less than 0.15 within two hours after driving or being in actual physical control of a motor vehicle within this state a person shall be punished by imprisonment for not less than seven days nor more than one year and by a fine of not less than five hundred dollars and not more than two thousand dollars. On a second conviction of a violation of RCW 46.61.502 or 46.61.504 within a five-year period where the result of the test of the person's breath or blood showed an alcohol concentration of 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state or where the person refused to submit to a test of the person's breath or blood for alcohol concentration, a person shall be punished by imprisonment for not less than fourteen days nor more than one year and by a fine of not less than six hundred dollars and not more than two thousand dollars. For purposes of the preceding sentence, the judge shall determine, based on a preponderance of the evidence, whether the person's alcohol concentration was 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state or whether the person refused to submit to a test of the person's breath or blood for alcohol concentration.

(b) On a third or subsequent conviction of a violation of RCW 46.61.502 or 46.61.504 within a five-year period where the result of the test of the person's breath or blood showed an alcohol concentration of less than 0.15 within two hours after driving or being in actual physical control of a motor vehicle within this state a person shall be punished by imprisonment for not less than ninety days nor more than one year and by a fine of not less than seven hundred fifty dollars and not more than two thousand dollars. On a third or subsequent conviction of a violation of RCW 46.61.502 or 46.61.504 within a five-year period where the result of the test of the person's breath or blood showed an alcohol concentration of 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state or where the person refused to submit to a test of the person's breath or blood for alcohol concentration a person shall be punished by imprisonment for not less than one hundred eighty days nor more than one year and by a fine of not less than one thousand dollars and not more than two thousand dollars. For purposes of the preceding sentence, the judge shall determine, based on a preponderance of the evidence, whether the person's alcohol concentration was 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state or whether the person refused to submit to a test of the person's breath or blood for alcohol concentration.

(c) District courts and courts organized under chapter 35.20 RCW are authorized to impose such fine. Unless the judge finds the person to be indigent, ((~~five hundred dollars of~~)) the mandatory minimum fine shall not be suspended or deferred. The mandatory minimum jail sentence shall not be suspended or deferred unless the judge finds that the imposition of the jail sentence will pose a substantial risk to the defendant's physical or mental well-being. Whenever the mandatory minimum jail sentence is suspended or deferred, the judge must state, in writing, the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based.

(d) If, at the time of the arrest on a second or subsequent offense, the driver is without a license or permit because of a previous suspension or revocation for a reason listed in RCW 46.20.342(1) (a) or (b), or because of a previous suspension or revocation for a reason listed in RCW 46.20.342(1)(c) if the original suspension or revocation was the result of a conviction of RCW 46.61.502 or 46.61.504, the minimum mandatory sentence shall be ninety days in jail and a ((~~five~~)) seven hundred fifty dollar fine. The penalty so imposed shall not be suspended or deferred.

(e) The person shall, in addition, be required to complete a diagnostic evaluation by an alcoholism agency approved by the department of social and health services or a qualified probation department approved by the department of social and health services. The report shall be forwarded to the department of licensing. If the person is found to have an alcohol or drug problem requiring treatment, the person shall complete treatment at an approved alcoholism treatment program or approved drug treatment center.

(f) In addition to any nonsuspendable and nondeferrable jail sentence required by this subsection, whenever the court imposes less than one year in jail, the court shall also suspend but shall not defer a period of confinement for a period not exceeding two years. The court shall impose conditions of probation that include (i) not driving a motor vehicle within this state without a valid license to drive and proof of financial responsibility for the future, (ii) not driving a motor vehicle within this state while having an alcohol concentration of 0.04 or more within two hours after driving, and (iii) not refusing to submit to a test of his or her breath or blood to determine alcohol concentration upon request of a law enforcement officer who has reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. The ((~~suspension of the sentence may be conditioned upon~~)) court may impose conditions of probation that include nonrepetition, alcohol or drug treatment, supervised probation, or other conditions that may be appropriate. The sentence may be imposed in whole or in part upon violation of a condition of ((~~suspension~~)) probation during the suspension period.

(g) For each violation of mandatory conditions of probation under (f) (i) and (ii) or (f) (i) and (iii) of this subsection, the court shall order the convicted person to be confined for thirty days, which shall not be suspended or deferred. Upon violation of a mandatory condition of probation, the court shall notify the department of licensing.

(3)(a) The license or permit to drive or any nonresident privilege of any person convicted of driving or being in physical control of a motor vehicle while under the influence of intoxicating liquor or drugs shall:

((~~(a)~~)) (i) On the first conviction under either offense, be suspended by the department until the person reaches age nineteen or for ninety days, whichever is longer. The department of licensing shall determine the person's eligibility for licensing based upon the reports provided by the designated alcoholism agency or probation department and shall deny reinstatement until enrollment and participation in an approved program has been established and the person is otherwise qualified;

((~~(b)~~)) (ii) On a second conviction under either offense within a five-year period, be revoked by the department for one year. The department of licensing shall determine the person's eligibility for licensing based upon the reports provided by the designated alcoholism agency or probation department and shall deny reinstatement until satisfactory progress in an approved program has been established and the person is otherwise qualified;

((~~(c)~~)) (iii) On a third or subsequent conviction of driving or being in physical control of a motor vehicle while under the influence of intoxicating liquor or drugs, vehicular homicide, or vehicular assault, or any combination thereof within a five-year period, be revoked by the department for two years.

(b) For any conviction for which the result of the test showed an alcohol concentration of the person's breath or blood of 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state, the period of suspension, revocation, or denial shall be increased by ninety days.

(c) The period of any suspension, revocation, or denial imposed under (a) and (b) of this subsection shall be reduced by the length of the period of suspension, revocation, or denial imposed under RCW 46.20.308(7).

(d) For each incident violating a mandatory condition or conditions of probation imposed under subsection (1) or (2) of this section, the license, permit, or privilege to drive of the person shall be suspended by the department for thirty days or, if such license, permit, or privilege to drive already is suspended, revoked, or denied at the time the finding of probation violation is made, the suspension, revocation, or denial then in effect shall be extended by thirty days.

(4) ((In any case provided for in this section, where a driver's license is to be revoked or suspended, the revocation or suspension shall be stayed and shall not take effect until after the determination of any appeal from the conviction which may lawfully be taken, but in case the conviction is sustained on appeal the revocation or suspension takes effect as of the date that the conviction becomes effective for other purposes.)) The filing of a notice of appeal shall not stay the suspension, revocation, or denial of a person's license, permit, or privilege to drive imposed under this section. A court shall not stay the suspension, revocation, or denial unless it finds that the appellant is likely to prevail in the appeal and without a stay the appellant will suffer irreparable injury. If the court stays the suspension, revocation, or denial, it may impose conditions on such stay. The stay shall not exceed ninety days, except for good cause shown, and shall in no event exceed one hundred eighty days.

(5)(a) In addition to penalties set forth in this section, a one hundred twenty-five dollar fee shall be assessed to a person who is either convicted, sentenced to a lesser charge, or given deferred prosecution, as a result of an arrest for violating RCW 46.61.502, 46.61.504, 46.61.520, or 46.61.522. This fee is for the purpose of funding the Washington state toxicology laboratory and the Washington state patrol breath test program.

(b) Upon a verified petition by the person assessed the fee, the court may suspend payment of all or part of the fee if it finds that the person does not have the ability to pay.

(c) When a minor has been adjudicated a juvenile offender for an offense which, if committed by an adult, would constitute a violation of RCW 46.61.502, 46.61.504, 46.61.520, or 46.61.522, the court shall assess the one hundred twenty-five dollar fee under (a) of this subsection. Upon a verified petition by a minor assessed the fee, the court may suspend payment of all or part of the fee if it finds that the minor does not have the ability to pay the fee.

(6) The fee assessed under subsection (5) of this section shall be collected by the clerk of the court and distributed as follows:

(a) Forty percent shall be subject to distribution under RCW 3.62.020, 3.62.040, or 10.82.040.

(b) If the case involves a blood test by the state toxicology laboratory, the remainder of the fee shall be forwarded to the state treasurer for deposit in the death investigations account to be used solely for funding the state toxicology laboratory blood testing program.

(c) Otherwise, the remainder of the fee shall be forwarded to the state treasurer for deposit in the state patrol highway account to be used solely for funding the Washington state patrol breath test program.

Sec. 18. RCW 46.61.515 and 1993 c 501 s 7 are each amended to read as follows:

(1) ((~~Every~~)) A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 where the result of the test of the person's breath or blood showed an alcohol concentration of less than 0.15 within two hours after driving or being in actual physical control of a motor vehicle within this state shall be punished by imprisonment for not less than twenty-four consecutive hours nor more than one year, and by a fine of not less than two hundred fifty dollars and not more than one thousand dollars. A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 where the result of the test of the person's breath or blood showed an alcohol concentration of 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state or where the person refused to submit to a test of the person's breath or blood for alcohol concentration shall be punished by imprisonment for not less than forty-eight consecutive hours nor more than one year, and by a fine of not less than three hundred fifty dollars and not more than one thousand dollars. For purposes of the preceding sentence, the judge shall determine, based on a preponderance of the evidence, whether the person's alcohol concentration was 0.15 or more within two hours after driving or being in actual physical control of a motor vehicle within this state or whether the person refused to submit to a test of the person's breath or blood for alcohol concentration. Unless the judge finds the person to be indigent, ((~~two hundred fifty dollars of~~)) the mandatory minimum fine shall not be suspended or deferred. ((~~Twenty-four consecutive hours of~~)) The mandatory minimum jail sentence shall not be suspended or deferred unless the judge finds that the imposition of the jail sentence will pose a substantial risk to the defendant's physical or mental well-being. Whenever the mandatory minimum jail sentence is suspended or deferred, the judge must state, in writing, the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based. The court shall impose conditions of probation which include (a) not driving a motor vehicle within this state without a valid license to drive and proof of financial responsibility for the future, (b) not driving a motor vehicle within this state while having an alcohol concentration of 0.04 or more within two hours after driving, and (c) not refusing to submit to a test of his or her breath or blood to determine alcohol concentration upon request of a law enforcement officer who has reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. The court may impose conditions of probation that may include nonrepetition, alcohol or drug treatment, supervised probation, or other conditions that may be appropriate. The convicted person shall, in addition, be required to complete a course in an alcohol information school approved by the department of social and health services or more intensive treatment in a program approved by the department of social and health services, as determined by the court. A diagnostic evaluation and treatment recommendation shall be prepared under the direction of the court by an alcoholism agency approved by the department of social and health services or a qualified probation department approved by the department of social and health services. A copy of the report shall be forwarded to the department of licensing. Based on the diagnostic evaluation, the court shall determine whether the convicted person shall be required to complete a course in an alcohol information school approved by the department of social and health services or more intensive treatment in a program approved by the department of social and health services. Standards for approval for alcohol treatment programs shall be prescribed by rule under the administrative procedure act, chapter 34.05 RCW. The department of social and health services shall periodically review the costs of alcohol information schools and treatment programs as part of the approval process.

Sec. 19. RCW 46.61.5151 and 1983 c 165 s 33 are each amended to read as follows:

A sentencing court may allow persons convicted of violating RCW 46.61.502 or 46.61.504 to fulfill the terms of the sentence provided in RCW 46.61.515 (1) or (2) in nonconsecutive or intermittent time periods. However, the ((~~first twenty-four hours of any~~)) mandatory minimum jail sentence under RCW 46.61.515(1) and the first forty-eight hours of any sentence under RCW 46.61.515(2) shall be served consecutively unless suspended or deferred as otherwise provided by law.

NEW SECTION. Sec. 20. Section 17 of this act shall expire June 30, 1995.

NEW SECTION. Sec. 21. Section 18 of this act shall take effect June 30, 1995.