5141-S

AN ACT Relating to offenses involving alcohol or drugs; amending RCW 46.61.502, 46.61.504, 46.61.5051, 46.61.5054, 46.61.5056, 46.61.506, 46.61.5151, 46.61.5152, 46.20.285, 35.21.165, 36.32.127, 46.20.270, 46.20.365, 46.20.291, 46.20.308, 10.05.020, 10.05.030, 10.05.040, 10.05.050, 10.05.060, 10.05.090, 10.05.100, 10.05.120, 10.05.140, 10.05.160, 10.05.170, 46.20.355, 46.20.311, 46.04.480, 46.04.015, 46.20.391, and 3.62.090; reenacting and amending RCW 10.31.100 and 46.63.020; adding a new section to chapter 46.61 RCW; adding new sections to chapter 46.20 RCW; creating new sections; repealing RCW 46.20.309, 46.61.5057, 46.61.5052, and 46.61.5053; repealing 1994 c 275 s 44 (uncodified); prescribing penalties; providing an effective date; and declaring an emergency.

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

PART I - DUI AND DUI PENALTIES................................................. 2

PART II - ADMINISTRATIVE LICENSE SUSPENSION/REVOCATION......................... 20

PART III - IMPLIED CONSENT..................................................... 26

PART IV - DEFERRED PROSECUTION................................................. 34

PART V - PROBATIONARY LICENSE.................................................. 42

PART VI - REINSTATEMENT........................................................ 44

PART VII - TECHNICAL........................................................... 46

PART VIII - MISCELLANEOUS...................................................... 48

PART I - DUI AND DUI PENALTIES

Sec. 1. RCW 46.61.502 and 1994 c 275 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:

(a) And the person has, within two hours after driving, an alcohol concentration of ((~~0.10 or higher~~)) 0.08 or more as shown by analysis of the person's breath or blood made under RCW 46.61.506; or

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

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

(3) It is an affirmative defense to a violation of subsection (1)(a) 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 earlier of (a) seven days prior to trial or (b) 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 an alcohol concentration of ((~~0.10~~)) 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1) (b) or (c) of this section.

(5) A violation of this section is a gross misdemeanor.

Sec. 2. RCW 46.61.504 and 1994 c 275 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:

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

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

(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does 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) 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 the 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 such control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the earlier of (a) seven days prior to trial or (b) 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 being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of ((~~0.10~~)) 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1) (b) or (c) of this section.

(5) A violation of this section is a gross misdemeanor.

Sec. 3. RCW 46.61.5051 and 1994 c 275 s 4 are each amended to read as follows:

(1) A person ((~~whose driver's license is not in a probationary, suspended, or revoked status, and who has not been~~)) convicted of a violation of RCW 46.61.502 or 46.61.504 ((that was committed within five years before the commission of the current violation, and who violates RCW 46.61.502(1)(a) or 46.61.504(1)(a) because of an alcohol concentration of at least 0.10 but less than 0.15, or a person who violates RCW 46.61.502(1) (b) or (c) or 46.61.504(1) (b) or (c) and for any reason other than the person's refusal to take a test offered pursuant to RCW 46.20.308 the person's alcohol concentration is not proved, is guilty of a gross misdemeanor and)) shall be punished ((~~as follows:~~

~~(a)~~)) by imprisonment for not less than one day nor more than one year((. Twenty-four consecutive hours of the imprisonment may not be suspended or deferred unless the court finds that the imposition of this mandatory minimum sentence would impose a substantial risk to the offender's physical or mental well-being. Whenever the mandatory minimum sentence is suspended or deferred, the court shall state in writing the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based; and

~~(b) By~~)), a fine of not less than three hundred fifty dollars nor more than five thousand dollars((~~. Three hundred fifty dollars of the fine may not be suspended or deferred unless the court finds the offender to be indigent; and~~

~~(c) By~~)), and suspension or denial by the department of the offender's license ((or)), permit ((~~to drive~~)), or ((~~suspension of any nonresident~~)) privilege to drive((,)) for a period of ninety days or until the offender reaches the age of seventeen years, whichever is longer. ((The court may suspend all or part of the ninety-day period of suspension upon a plea agreement executed by the defendant and the prosecutor. The court shall notify the department of licensing of the conviction and of any period of suspension and shall notify the department of the person's completion of any period of suspension. Upon receiving notification of the conviction, or if applicable, upon receiving notification of the completion of any period of suspension, the department shall issue the offender a probationary license in accordance with RCW 46.20.355.))

(2) A person ((whose driver's license is not in a probationary, suspended, or revoked status, and who has not been convicted of a violation of RCW 46.61.502 or 46.61.504 that was committed within five years before the commission of the current violation, and who either:

~~(a) Violates RCW 46.61.502(1)(a) or 46.61.504(1)(a) because of an alcohol concentration of 0.15 or more; or~~

(b) Violates RCW 46.61.502(1) (b) or (c) or 46.61.504(1) (b) or (c) and, because of the person's refusal to take a test offered pursuant to RCW 46.20.308, there is no test result indicating the person's alcohol concentration, is guilty of a gross misdemeanor and)) convicted of a violation of RCW 46.61.502 or 46.61.504 who has one prior conviction shall be punished ((~~as follows:~~

~~(i)~~)) by imprisonment for not less than ((~~two~~)) thirty days nor more than one year((. Forty-eight consecutive hours of the imprisonment may not be suspended or deferred unless the court finds that the imposition of this mandatory minimum sentence would impose a substantial risk to the offender's physical or mental well-being. Whenever the mandatory minimum sentence is suspended or deferred, the court shall state in writing the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based; and

~~(ii) By~~)), a fine of not less than five hundred dollars nor more than five thousand dollars((~~. Five hundred dollars of the fine may not be suspended or deferred unless the court finds the offender to be indigent; and~~

~~(iii) By suspension~~)), and revocation or denial by the department of the offender's license ((or)), permit ((~~to drive~~)), or ((~~suspension of any nonresident~~)) privilege to drive((,)) for a period of one ((hundred twenty days. The court shall notify the department of the conviction, and upon receiving notification of the conviction the department shall suspend the offender's license and shall issue the offender a probationary license in accordance with RCW 46.20.355)) year or until the offender reaches the age of eighteen years, whichever is longer.

(3) A person convicted of a violation of RCW 46.61.502 or 46.61.504 who has at least two prior convictions shall be punished by imprisonment for not less than ninety days nor more than one year, a fine of not less than seven hundred fifty dollars nor more than five thousand dollars, and revocation or denial by the department of the offender's license, permit, or privilege to drive for a period of two years or until the offender reaches the age of eighteen years, whichever is longer.

(4) For purposes of sentencing under this section, "prior conviction" means a conviction under RCW 46.61.502, 46.61.504, section 18 of this act, or a municipal ordinance or out-of-state statute or ordinance similar to any of these statutes or, as provided by RCW 10.05.060, 10.05.120, and 46.20.270(4), a deferred prosecution for a violation of RCW 46.61.502 or 46.61.504 or similar municipal ordinance based on an incident within five years of the commission of the current violation. For purposes of sentencing under this section, the court shall determine, based on a preponderance of the evidence, whether the offender has been convicted under RCW 46.61.502, 46.61.504, section 18 of this act, or a municipal ordinance or out-of-state statute or ordinance similar to any of these statutes or has been granted a deferred prosecution for a violation of RCW 46.61.502 or 46.61.504 or similar municipal ordinance based on an incident within five years of the commission of the current violation. The prosecutor or the court may obtain an abstract of the offender's driving record, which shall be prima facie evidence of the offender's prior convictions.

(5) In exercising its discretion in setting penalties within the limits allowed by this section, the court shall particularly consider as an aggravating factor whether:

(a) The ((~~person's~~)) offender's driving at the time of the offense was responsible for injury or damage to another or another's property((.

(4) Upon conviction under this section, the offender's driver's license is deemed to be in a probationary status for five years from the date of the issuance of a probationary license under RCW 46.20.355. Being on probationary status does not authorize a person to drive during any period of license suspension imposed as a penalty for the infraction.

~~(5)~~));

(b) The offender's alcohol concentration was 0.15 or more;

(d) The offender's license, permit, or privilege to drive was suspended, revoked, denied, or in probationary status at the time of the violation; and

(e) The offender was not in compliance with RCW 46.30.020 at the time of the violation.

(6) The court shall not defer the minimum term of imprisonment or minimum fine. The court shall not suspend the minimum term of imprisonment or minimum fine unless it finds, considering the purposes of Title 46 RCW and any aggravating or mitigating factors, that the minimum term of imprisonment or minimum fine would be clearly excessive and that there are substantial and compelling reasons justifying a lesser term of imprisonment or fine. Whenever the minimum term of imprisonment or minimum fine is suspended, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence suspending the minimum term of imprisonment or minimum fine is subject to appeal by the prosecution. To reverse a sentence suspending the minimum term of imprisonment or minimum fine, the reviewing court must find that the reasons supplied by the sentencing judge are not supported by the record that was before the judge, those reasons do not justify such a sentence, or the sentence imposed was clearly too lenient.

(7) Upon sentencing an offender under this section, the court shall notify the department of licensing, which shall suspend, revoke, or deny the offender's license, permit, or privilege to drive. The period of suspension, revocation, or denial imposed under this section shall be reduced by the length of the period of suspension, revocation, or denial imposed under RCW 46.20.365 based on the same incident. After expiration of the period of suspension, revocation, or denial, the department shall place the offender's driving privilege in probationary status pursuant to RCW 46.20.355.

(8) An offender ((~~punishable~~)) sentenced under this section is subject to the alcohol assessment and treatment provisions of RCW 46.61.5056. An offender sentenced under subsection (2) or (3) of this section is not eligible for an occupational license under RCW 46.20.391 and is subject to vehicle seizure and forfeiture using the procedures of RCW 46.61.5058.

((~~(6)~~)) (9)(a) In addition to any nonsuspendable and nondeferrable jail sentence required by this section, 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 as defined by RCW 46.29.260; (ii) not driving a motor vehicle within this state while having an alcohol concentration of ((~~0.08~~)) 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 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 probation during the suspension period.

(b) For each violation of mandatory conditions of probation under (a) (i) and (ii) or (a) (i) and (iii) of this subsection, the court shall order the ((~~convicted person~~)) offender to be confined for thirty days, which shall not be suspended or deferred.

(c) For each ((~~incident involving a~~)) violation of a mandatory condition of probation imposed under this subsection, the court shall notify the department, which shall suspend or deny the offender's license, permit, or privilege to drive ((~~of the person shall be suspended by the court~~)) 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. ((~~The court shall notify the department of any suspension, revocation, or denial or any extension of a suspension, revocation, or denial imposed under this subsection.~~))

Sec. 4. RCW 46.61.5054 and 1994 c 275 s 7 are each amended to read as follows:

(1)(a) In addition to penalties set forth in RCW 46.61.5051 ((~~through 46.61.5053~~)), 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, or section 9 of this act. 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~~)) juvenile 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~~)) juvenile 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.

(2) The fee assessed under subsection (1) 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 3.46.120, 3.50.100, 35.20.220, 3.62.020, 3.62.040, or 10.82.070.

(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. 5. RCW 46.61.5056 and 1994 c 275 s 9 are each amended to read as follows:

(1) A person subject to alcohol assessment and treatment under RCW 46.61.5051((~~, 46.61.5052, or 46.61.5053~~)) shall be required by the court to complete a course in an alcohol information school approved by the department of social and health services or to complete more intensive treatment ((~~in a~~)) by an approved treatment program ((~~approved by the department of social and health services~~)), as defined by RCW 70.96A.020, as determined by either the court or the court's probation department. The court shall notify the department of licensing whenever it orders a person to complete a course or treatment ((~~program~~)) under this section.

(2) A written diagnostic evaluation and recommended treatment ((~~recommendation~~)) shall be prepared under the direction of the court by an ((~~alcoholism agency approved by the department of social and health services~~)) approved treatment program 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 written diagnostic evaluation and recommended treatment, the court or the court's probation department shall determine whether the 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~~)) by an approved treatment program ((~~approved by the department of social and health services~~)).

(3) Standards for approval for alcohol ((~~treatment programs~~)) information schools shall be prescribed by the department of social and health services. The department of social and health services shall periodically review the costs of alcohol information schools and treatment by approved treatment programs.

(4) Any ((~~agency~~)) approved treatment program that provides treatment ordered under RCW 46.61.5051((~~, 46.61.5052, or 46.61.5053,~~)) shall immediately report to the appropriate probation department where applicable, otherwise to the court, and to the department of licensing any noncompliance by ((~~a person~~)) an offender with the conditions of his or her ordered treatment. The court shall notify the department of licensing and the department of social and health services of any failure by an ((~~agency~~)) approved treatment program to so report noncompliance. Any ((~~agency~~)) approved treatment program with knowledge of noncompliance that fails to so report shall be fined two hundred fifty dollars by the department of social and health services. Upon three such failures by an ((~~agency~~)) approved treatment program within one year, the department of social and health services shall revoke the ((~~agency's approval~~)) approved treatment program's license or certification under this section. If the secretary imposes a fine under this subsection, the fine must be paid within ninety days of notice of its imposition or the secretary shall revoke the license of the approved treatment program or licensed service provider. Upon receipt of a report of an offender's noncompliance under this subsection, the department of licensing shall suspend the offender's license or permit to drive under RCW 46.20.291(4) or deny the offender's privilege to drive under RCW 46.20.031(3).

(5) The department of licensing and the department of social and health services may adopt such rules as are necessary to carry out this section.

Sec. 6. RCW 46.61.506 and 1994 c 275 s 26 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 person's alcohol concentration is less than ((~~0.10~~)) 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~~)) alcohol concentration or presence of drugs 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. 7. RCW 46.61.5151 and 1994 c 275 s 39 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 46.61.5051((~~, 46.61.5052, or 46.61.5053~~)) in nonconsecutive or intermittent time periods. However, any mandatory minimum sentence under RCW 46.61.5051((~~, 46.61.5052, or 46.61.5053~~)) shall be served consecutively unless suspended ((~~or deferred~~)) as otherwise provided by law.

Sec. 8. RCW 46.61.5152 and 1994 c 275 s 40 are each amended to read as follows:

In addition to penalties that may be imposed under RCW 46.61.5051, ((~~46.61.5052, or 46.61.5053,~~)) the court may require a person who is convicted of a violation of RCW 46.61.502 or 46.61.504 or who enters a deferred prosecution program under RCW 10.05.020 based on a violation of RCW 46.61.502 or 46.61.504, to attend an educational program focusing on the emotional, physical, and financial suffering of victims who were injured by persons convicted of driving while under the influence of intoxicants.

NEW SECTION. Sec. 9. A new section is added to chapter 46.61 RCW to read as follows:

(1) A person is guilty of driving a motor vehicle after consuming alcohol if the person operates a motor vehicle within this state and the person:

(a) Is under the age of twenty-one;

(b) Has, within two hours after operating the motor vehicle, an alcohol concentration of 0.02 or more, as shown by analysis of the person's breath or blood made under RCW 46.61.506.

(2) It is an affirmative defense to a violation of subsection (1) 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 0.02 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 earlier of (a) seven days prior to trial or (b) the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

(3) 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 an alcohol concentration of 0.02 or more in violation of subsection (1) of this section.

(4) A violation of this section is a misdemeanor.

Sec. 10. RCW 46.20.285 and 1990 c 250 s 43 are each amended to read as follows:

The department shall ((~~forthwith~~)) immediately revoke the license of any driver for the period of one calendar year unless otherwise provided in this section, upon receiving a record of the driver's conviction of any of the following offenses, when the conviction has become final:

(1) For vehicular homicide the period of revocation ((~~shall be~~)) is two years;

(2) Vehicular assault;

(3) For driving a motor vehicle while under the influence of intoxicating liquor or ((~~a narcotic~~)) any drug, ((~~or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle,~~)) upon a showing by the department's records that the conviction is the second such conviction for the driver within a period of five years, the period of revocation is one year or until the driver reaches the age of eighteen years, whichever is longer. Upon a showing that the conviction is the third or subsequent such conviction for the driver within a period of five years, the period of revocation ((~~shall be~~)) is two years or until the driver reaches the age of eighteen years, whichever is longer;

(4) Any felony in the commission of which a motor vehicle is used;

(5) Failure to stop and give information or render aid as required under the laws of this state in the event of a motor vehicle accident resulting in the death or personal injury of another or resulting in damage to a vehicle that is driven or attended by another;

(6) Perjury or the making of a false affidavit or statement under oath to the department under Title 46 RCW or under any other law relating to the ownership or operation of motor vehicles;

(7) Reckless driving upon a showing by the department's records that the conviction is the third such conviction for the driver within a period of two years;

(8) For refusal to submit to a breath or blood test, upon a showing by the department's records that the conviction is the second such conviction for the driver within a period of five years, the period of revocation is two years or until the driver reaches the age of eighteen years, whichever is longer. Upon a showing that the conviction is the third or subsequent such conviction for the driver within a period of five years from the first conviction, the period of revocation is three years or until the driver reaches the age of eighteen years, whichever is longer.

Sec. 11. RCW 10.31.100 and 1993 c 209 s 1 and 1993 c 128 s 5 are each reenacted and amended to read as follows:

A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, except as provided in subsections (1) through (10) of this section.

(1) Any police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270 shall have the authority to arrest the person.

(2) A police officer shall arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that:

(a) An order has been issued of which the person has knowledge under RCW 10.99.040(2), 10.99.050, 26.09.060, 26.44.063, chapter 26.26 RCW, or chapter 26.50 RCW restraining the person and the person has violated the terms of the order restraining the person from acts or threats of violence or excluding the person from a residence or, in the case of an order issued under RCW 26.44.063, imposing any other restrictions or conditions upon the person; or

(b) The person is eighteen years or older and within the preceding four hours has assaulted that person's spouse, former spouse, or a person eighteen years or older with whom the person resides or has formerly resided and the officer believes: (i) A felonious assault has occurred; (ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or (iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or an impairment of physical condition. When the officer has probable cause to believe that spouses, former spouses, or other persons who reside together or formerly resided together have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider: (i) The intent to protect victims of domestic violence under RCW 10.99.010; (ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and (iii) the history of domestic violence between the persons involved.

(3) Any police officer having probable cause to believe that a person has committed or is committing a violation of any of the following traffic laws shall have the authority to arrest the person:

(a) RCW 46.52.010, relating to duty on striking an unattended car or other property;

(b) RCW 46.52.020, relating to duty in case of injury to or death of a person or damage to an attended vehicle;

(d) RCW 46.61.502 or 46.61.504, relating to persons under the influence of intoxicating liquor or drugs;

(e) Section 9 of this act, relating to a person under age twenty-one driving a motor vehicle after consuming alcohol;

(f) RCW 46.20.342, relating to driving a motor vehicle while operator's license is suspended or revoked;

((~~(f)~~)) (g) RCW 46.61.525, relating to operating a motor vehicle in a negligent manner.

(4) A law enforcement officer investigating at the scene of a motor vehicle accident may arrest the driver of a motor vehicle involved in the accident if the officer has probable cause to believe that the driver has committed in connection with the accident a violation of any traffic law or regulation.

(5) Any police officer having probable cause to believe that a person has committed or is committing a violation of RCW ((~~88.12.100~~)) 88.12.025 shall have the authority to arrest the person.

(6) An officer may act upon the request of a law enforcement officer in whose presence a traffic infraction was committed, to stop, detain, arrest, or issue a notice of traffic infraction to the driver who is believed to have committed the infraction. The request by the witnessing officer shall give an officer the authority to take appropriate action under the laws of the state of Washington.

(7) Any police officer having probable cause to believe that a person has committed or is committing any act of indecent exposure, as defined in RCW 9A.88.010, may arrest the person.

(8) A police officer may arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that an order has been issued of which the person has knowledge under chapter 10.14 RCW and the person has violated the terms of that order.

(9) Any police officer having probable cause to believe that a person has, within twenty-four hours of the alleged violation, committed a violation of RCW 9A.50.020 may arrest such person.

(10) A police officer having probable cause to believe that a person illegally possesses or illegally has possessed a firearm or other dangerous weapon on private or public elementary or secondary school premises shall have the authority to arrest the person.

For purposes of this subsection, the term "firearm" has the meaning defined in RCW 9.41.010 and the term "dangerous weapon" has the meaning defined in RCW 9.41.250 and 9.41.280(1) (c) through (e).

(11) Except as specifically provided in subsections (2), (3), (4), and (6) of this section, nothing in this section extends or otherwise affects the powers of arrest prescribed in Title 46 RCW.

(12) No police officer may be held criminally or civilly liable for making an arrest pursuant to RCW 10.31.100 (2) or (8) if the police officer acts in good faith and without malice.

Sec. 12. RCW 35.21.165 and 1994 c 275 s 36 are each amended to read as follows:

Except as limited by the maximum penalties authorized by law, no city or town may establish a penalty for an act that constitutes the crime of driving while under the influence of intoxicating liquor or any drug, as provided in RCW 46.61.502, or the crime of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug, as provided in RCW 46.61.504, that is less than the penalties prescribed for those crimes in RCW 46.61.5051((~~, 46.61.5052, and 46.61.5053~~)).

Sec. 13. RCW 36.32.127 and 1994 c 275 s 37 are each amended to read as follows:

No county may establish a penalty for an act that constitutes the crime of driving while under the influence of intoxicating liquor or any drug, as provided for in RCW 46.61.502, or the crime of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug, as provided in RCW 46.61.504, that is less than the penalties prescribed for those crimes in RCW 46.61.5051((~~, 46.61.5052, and 46.61.5053~~)).

Sec. 14. RCW 46.20.270 and 1990 2nd ex.s. c 1 s 402 are each amended to read as follows:

(1) Whenever any person is convicted of any offense for which this title makes mandatory the suspension or revocation of the driver's license of such person by the department, the privilege of the person to operate a vehicle is suspended until the department takes the action required by this chapter, and the court in which such conviction is had shall forthwith secure the immediate forfeiture of the driver's license of such convicted person and immediately forward such driver's license to the department, and on failure of such convicted person to deliver such driver's license the judge ((~~shall~~)) may cause such person to be confined for the period of such suspension or revocation or until such driver's license is delivered to such judge((: PROVIDED, That if the convicted person testifies that he or she does not and at the time of the offense did not have a current and valid vehicle driver's license, the judge shall cause such person to be charged with the operation of a motor vehicle without a current and valid driver's license and on conviction punished as by law provided, and the department may not issue a driver's license to such persons during the period of suspension or revocation: PROVIDED, ALSO, That)) or may take other appropriate action to secure the forfeiture of such driver's license. If the driver's license of such convicted person has been lost or destroyed and such convicted person makes an affidavit to that effect, sworn to before the judge, the convicted person may not be so confined, but the department may not issue or reissue a driver's license for such convicted person during the period of such suspension or revocation: PROVIDED, That perfection of notice of appeal shall stay the execution of sentence including the suspension and/or revocation of the driver's license.

(2) Every court having jurisdiction over offenses committed under this chapter, or any other act of this state or municipal ordinance adopted by a local authority regulating the operation of motor vehicles on highways, or any federal authority having jurisdiction over offenses substantially the same as those set forth in Title 46 RCW which occur on federal installations within this state, shall forward to the department within ten days of a forfeiture of bail or collateral deposited to secure the defendant's appearance in court, a payment of a fine or penalty, a plea of guilty or a finding of guilt, or a finding that any person has committed a traffic infraction an abstract of the court record in the form prescribed by rule of the supreme court, showing the conviction of any person or the finding that any person has committed a traffic infraction in said court for a violation of any said laws other than regulations governing standing, stopping, parking, and pedestrian offenses.

(3) Every municipality having jurisdiction over offenses committed under this chapter, or under any other act of this state or municipal ordinance adopted by a local authority regulating the operation of motor vehicles on highways, may forward to the department within ten days of failure to respond, failure to pay a penalty, failure to appear at a hearing to contest the determination that a violation of any statute, ordinance, or regulation relating to standing, stopping, or parking has been committed, or failure to appear at a hearing to explain mitigating circumstances, an abstract of the citation record in the form prescribed by rule of the department, showing the finding by such municipality that two or more violations of laws governing standing, stopping, and parking have been committed and indicating the nature of the defendant's failure to act. Such violations may not have occurred while the vehicle is stolen from the registered owner or is leased or rented under a bona fide commercial vehicle lease or rental agreement between a lessor engaged in the business of leasing vehicles and a lessee who is not the vehicle's registered owner. The department may enter into agreements of reciprocity with the duly authorized representatives of the states for reporting to each other violations of laws governing standing, stopping, and parking.

(4) For the purposes of Title 46 RCW ((~~the term~~)), "conviction" means a final conviction in a state or municipal court or by any federal authority having jurisdiction over offenses substantially the same as those set forth in Title 46 RCW which occur on federal installations in this state, an unvacated forfeiture of bail or collateral deposited to secure a defendant's appearance in court, the payment of a fine, a plea of guilty, or a finding of guilt on a traffic law violation charge, regardless of whether the imposition of sentence or sanctions are deferred or the penalty is suspended((~~, but~~)). "Conviction" does not ((~~including~~)) include entry into a deferred prosecution agreement under chapter 10.05 RCW, except that a deferred prosecution for a violation of RCW 46.61.502 or 46.61.504 shall be considered a conviction under RCW 46.61.502 or 46.61.504 for purposes of imposing a mandatory minimum sentence under RCW 46.61.5051 for subsequent offenses within a five-year period.

(5) For the purposes of Title 46 RCW ((~~the term~~)), "finding that a traffic infraction has been committed" means a failure to respond to a notice of infraction or a determination made by a court pursuant to this chapter. Payment of a monetary penalty made pursuant to RCW 46.63.070(2) is deemed equivalent to such a finding.

PART II - ADMINISTRATIVE LICENSE SUSPENSION/REVOCATION

Sec. 15. RCW 46.20.365 and 1994 c 275 s 12 are each amended to read as follows:

(1) This section applies to any person arrested for a violation of RCW 46.61.502 ((or)), 46.61.504, or section 9 of this act who ((~~has~~)) either (a) submitted to a test administered pursuant to RCW 46.20.308 and the result of each test showed an alcohol concentration of ((~~0.10 or higher as shown by a test administered under~~)) 0.08 or more, or 0.02 or more if the person is under the age of twenty-one years, or (b) refused to submit to a test offered pursuant to RCW 46.20.308.

(2) The arresting officer or other law enforcement officer at whose direction the test was given or offered, or the department of licensing if the arrest was the result of a blood test, shall:

(a) Serve the person notice in writing on behalf of the department of licensing of its intention to suspend, revoke, or deny the person's license, permit, or privilege to drive ((~~or to issue a probationary license~~));

(b) Serve the person notice in writing on behalf of the department of the person's right to a hearing, specifying the steps required to obtain a hearing;

(c) Confiscate the person's Washington state license or permit to drive, if any, and issue a temporary license to replace any confiscated license or permit. The temporary license becomes effective twelve hours after the time of arrest and shall be valid for ((~~thirty~~)) forty-five days from the date of arrest, or from the date the department gives notice under this subsection in the event of a blood test, or until the suspension ((or)), revocation, or denial of the person's license ((or)), permit, or ((~~the issuance of a probationary license,~~)) privilege to drive is sustained at a hearing pursuant to subsection (5) of this section, whichever occurs first. If the person has not within the previous five years committed an offense for which he or she was granted a deferred prosecution under chapter 10.05 RCW, and within ((~~thirty~~)) forty-five days of the arrest the person petitions a court for a deferred prosecution on criminal charges arising out of the arrest, and the person documents that he or she has commenced the recommended treatment or is scheduled to begin treatment at the earliest available opening at the designated treatment program, the court ((~~shall~~)) may direct the department to extend the period of the temporary license by ((~~at least an additional~~)) not more than thirty days ((~~but not more than an additional sixty days~~)). As a condition of directing the department to extend the period of the temporary license, the court shall order one or more of the following conditions of the petitioner: (i) Not operate a motor vehicle within this state without a valid operator's license and proof of compliance with RCW 46.30.020, (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, (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, (iv) confine the driving of a motor vehicle to petitioner's place of employment and to attend treatment, including alcoholism self-help recovery support group meetings, and (v) attend alcoholism self-help recovery support group meetings. Upon the violation of any of the conditions imposed by the court, the court shall direct the department to cancel any period of extension of the temporary license. If a deferred prosecution treatment plan is not recommended in the report made under RCW 10.05.050, or if treatment is rejected by the court, or if the person declines to accept an offered treatment plan, then the court shall immediately direct the department to cancel any period of extension of the temporary license. No temporary license is valid to any greater degree than the license or permit it replaces;

(d) Notify the department of the arrest, and transmit to the department any confiscated license or permit and a sworn report or report under a declaration authorized by RCW 9A.72.085, and a copy of the information showing the results of any test administered under RCW 46.20.308, stating:

(i) That the officer had reasonable grounds to believe the arrested person was driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drug, or both or was in violation of section 9 of this act;

(ii)(A) That pursuant to RCW 46.20.308 a test of the person's ((~~alcohol concentration~~)) breath or blood was administered and the result of each test showed an alcohol concentration of 0.08 or more, or 0.02 or more if the person was under the age of twenty-one years; or

(B) That the person refused to submit to a test offered pursuant to RCW 46.20.308; and

(iii) ((~~That the test indicated that the person's alcohol concentration was 0.10 or higher; and~~

~~(iv)~~)) Any other information that the department may require by rule.

(3) Upon receipt of a ((~~sworn statement~~)) report under subsection (2) of this section, the department shall suspend, revoke, or deny the person's license, permit, or driving privilege((~~, or shall issue a probationary license,~~)) effective beginning ((~~thirty~~)) forty-five days from the date of the arrest, or from the date the department gave notice under subsection (2) of this section in the event of a blood test, or beginning when the suspension, revocation, or denial((~~, or issuance~~)) is sustained at a hearing pursuant to subsection (5) of this section, whichever occurs first. The duration of the suspension, revocation, or denial((~~, or issuance of a probationary license,~~)) shall be as follows:

(a) Upon receipt of a first ((~~sworn statement, issuance of a probationary license~~)) report showing:

(i) An alcohol concentration of 0.08 or more, or 0.02 or more if the person is under the age of twenty-one years, suspension or denial for ninety days or until the person reaches the age of seventeen years, whichever is longer, followed by placement in probationary status under RCW 46.20.355;

(ii) That the person refused to submit to a test offered pursuant to RCW 46.20.308, revocation or denial for one year or until the person reaches the age of seventeen years, whichever is longer, followed by placement in probationary status under RCW 46.20.355;

(b) Upon receipt of a second report indicating an arrest date within five years of the arrest date indicated by a previous report and the second report shows:

(i) An alcohol concentration of 0.08 or more, or 0.02 or more if the person is under the age of twenty-one years, revocation or denial for one year or until the person reaches the age of eighteen years, whichever is longer, followed by placement in probationary status under RCW 46.20.355;

(ii) That the person refused to submit to a test offered pursuant to RCW 46.20.308, revocation or denial for two years or until the person reaches the age of eighteen years, whichever is longer, followed by placement in probationary status under RCW 46.20.355;

(c) Upon receipt of a ((~~second~~)) third or subsequent ((~~statement~~)) report indicating an arrest date that is within five years of the arrest date indicated by ((~~a previous statement, revocation for two years~~)) the first report under (a) of this subsection and the third report shows:

(i) An alcohol concentration of 0.08 or more, or 0.02 or more if the person is under the age of twenty-one years, revocation or denial for two years or until the person reaches the age of eighteen years, whichever is longer, followed by placement in probationary status under RCW 46.20.355;

(ii) That the person refused to submit to a test offered pursuant to RCW 46.20.308, revocation or denial for three years or until the person reaches the age of eighteen years, whichever is longer, followed by placement in probationary status under RCW 46.20.355.

(4) A person receiving notification under subsection (2) of this section may, within ((~~five~~)) seven days after his or her arrest, or after the date the department gave notice under subsection (2) of this section in the event of a blood test, request a hearing before the department under subsection (5) of this section. The request shall be in writing. The person shall pay a fee of one hundred dollars as part of the request. If the request is mailed, it must be postmarked within ((~~five~~)) seven days after the arrest, or after the date the department gave notice under subsection (2) of this section in the event of a blood test.

(5)(a) Upon timely receipt of a request and a one hundred dollar fee under subsection (4) of this section, the department shall afford the person an opportunity for a hearing. ((~~Except as otherwise provided in this section, the hearing is subject to and shall be scheduled and conducted in accordance with RCW 46.20.329 and 46.20.332.~~)) The director shall appoint a designee or designees to conduct the hearing. A hearing officer shall conduct the hearing, may issue subpoenas for the attendance of witnesses and the production of documents, and shall administer oaths to witnesses. The hearing officer shall not issue a subpoena for the attendance of a witness at the request of the person requesting the hearing unless the request is accompanied by the fee required by RCW 5.56.010 for a witness in district court. The report of the law enforcement officer and any other evidence accompanying that report is admissible without further evidentiary foundation and the certifications authorized by the criminal rules for courts of limited jurisdiction are admissible without further evidentiary foundation. The person requesting the hearing may be represented by counsel, may present evidence, and may testify. The hearing shall be recorded and shall be conducted in the county of arrest, except that all or part of the hearing may, at the discretion of the department, be conducted by telephone or other electronic means. The hearing shall be held within ((~~thirty~~)) forty-five days following the arrest((~~, unless otherwise agreed to by the department and the person. The hearing shall cover the issues of:~~

~~(a) Whether~~)), or following the date the department gave notice under subsection (2) of this section in the event of a blood test.

(b) The hearing officer shall sustain the suspension, revocation, or denial of the person's license, permit, or privilege to drive if the hearing officer determines, based on a preponderance of the evidence, that:

(i) The law enforcement officer had reasonable grounds to believe the arrested person was driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or was in violation of section 9 of this act; and

((~~(b) Whether the test of the person's alcohol concentration was administered in accordance with RCW 46.20.308; and~~

~~(c) Whether the test indicated that the person's alcohol concentration was 0.10 or higher.~~

(6) The period of any suspension, revocation, or denial imposed under this section shall run consecutively to the period of any suspension, revocation, or denial imposed pursuant to a criminal conviction arising out of the same incident.))

(ii) Either (A) a test of the person's breath or blood was administered in accordance with RCW 46.20.308 and the result of each test showed an alcohol concentration of 0.08 or more, or 0.02 or more if the person was under the age of twenty-one years, or (B) the person refused to submit to a test offered pursuant to RCW 46.20.308.

(6) No determination of facts by the hearing officer under subsection (5) of this section shall have any collateral estoppel effect on a subsequent criminal prosecution and shall not preclude litigation of those same facts in a subsequent criminal prosecution.

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

(8) Except for a revocation of a person's license, permit, or privilege to drive imposed under this section for refusal to submit to a test offered pursuant to RCW 46.20.308, a suspension, revocation, or denial imposed under this section 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.

((~~(7)~~)) (9) If the suspension, revocation, or denial is sustained, the department of licensing may recover costs in excess of one hundred dollars as provided by RCW 12.20.060. If costs are to be recovered, the person's license, permit, or privilege to drive shall not be reissued or renewed until these costs are paid. 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 or permit to drive without charge. If the suspension, revocation, or denial((~~, or issuance~~)) is sustained ((~~after such a hearing~~)), the person whose license, privilege, or permit is suspended, revoked, or denied((~~, or who has been issued a probationary license,~~)) has the right to ((~~file a petition in~~)) appeal to the superior court of the county of arrest in the same manner as an appeal from a decision of a court of limited jurisdiction. The appellant must pay the costs associated with obtaining the record of the hearing before the hearing officer. A court may stay the suspension, revocation, or denial if it finds that the appellant is likely to prevail in the appeal and that 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.

((~~(8)~~)) (10) 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, revoked, or denied, 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. 16. 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 46.61.5051;

(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) Has submitted to a test offered pursuant to RCW 46.20.308 and the result of the test showed an alcohol concentration of 0.08 or more, or 0.02 or more if the person was under the age of twenty-one years.

PART III - IMPLIED CONSENT

Sec. 17. RCW 46.20.308 and 1994 c 275 s 13 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~~)) alcohol concentration or presence of drugs 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 or any drug or was in violation of section 9 of this act.

(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, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(4) 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)~~)); (c) the person is being treated by an emergency medical technician, as defined by RCW 18.73.030; or (d) the law enforcement officer has reasonable grounds to believe the person was driving or in actual physical control of a motor vehicle while under the influence of any drug. 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 that ((~~(a)~~)) (i) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, ((~~and (b) that~~)) (ii) knowing refusal to submit to the test is a crime punishable as a gross misdemeanor, (iii) if the person is under the age of twenty-one years, his or her license, permit, or privilege to drive will be suspended, revoked, or denied if the test is administered and the result of each test shows an alcohol concentration of 0.02 or more, (iv) if the person is age twenty-one years or older, his or her license, permit, or privilege to drive will be suspended, revoked, or denied if the test is administered and the result of each test shows an alcohol concentration of 0.08 or more, and (v) 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 seriously 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 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, shall revoke the person's license or permit to drive or any nonresident operating privilege.

(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 person shall pay a fee of one hundred dollars as part of the request. Upon receipt of such request and such fee, the department shall afford the person an opportunity for a hearing as provided in RCW 46.20.329 and 46.20.332. The hearing 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 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 the person was placed under arrest, and whether 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) If the revocation is sustained after such a hearing, the person whose license, privilege, or permit is revoked has the right to file a petition in 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) 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 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.))

NEW SECTION. Sec. 18. A new section is added to chapter 46.20 RCW to read as follows:

(1) A person is guilty of refusal to submit to a breath or blood test when he or she:

(a) Is arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of section 9 of this act; and

(b) Receives the warnings under RCW 46.20.308(2); and

(c) Knowingly refuses to submit to the test offered pursuant to RCW 46.20.308. "Knowingly" has the same definition as in RCW 9A.08.010(1)(b).

(2) Refusal to submit to a breath or blood test is a gross misdemeanor, punishable under chapter 9A.20 RCW.

(3) The department shall revoke or deny the license, permit, or privilege to drive of a person convicted under this section as follows:

(a) If the person has no prior convictions within a five-year period, revocation or denial for one year;

(b) If the person has one prior conviction within a five-year period, revocation or denial for two years;

For purposes of this subsection, "prior conviction" means a conviction under this section, RCW 46.61.502, 46.61.504, a municipal ordinance or out-of-state statute or ordinance similar to any of these statutes or, as provided by RCW 10.05.060, 10.05.120, and 46.20.270(4), a deferred prosecution for a violation of RCW 46.61.502, 46.61.504, or similar municipal ordinance based on an incident within five years before the commission of the current violation.

If a person convicted under this section also is convicted under RCW 46.61.502 or 46.61.504 based on the same incident, the period of revocation or denial imposed under this section shall run consecutive to the period of suspension, revocation, or denial imposed under RCW 46.61.5051. The period of revocation or denial imposed under this section shall be reduced by the length of the period of revocation or denial imposed under RCW 46.20.365 based on the same incident. However, if a person convicted under this section also is convicted under RCW 46.61.502 or 46.61.504 based on the same incident, the period of revocation or denial imposed under RCW 46.20.365 shall reduce only the period of revocation or denial imposed under this section and shall not be used to reduce both the period of revocation or denial imposed under this section and the period of suspension, revocation, or denial imposed under RCW 46.61.5051.

(4) A conviction under this section shall be considered a conviction under RCW 46.61.502 or 46.61.504 for purposes of imposing a mandatory minimum sentence under RCW 46.61.5051 for subsequent offenses within a five-year period, unless the person is convicted both under this section and under RCW 46.61.502 or 46.61.504 based on the same incident, in which case the conviction under this section shall not be considered a conviction under RCW 46.61.502 or 46.61.504.

Sec. 19. RCW 46.63.020 and 1994 c 275 s 33 and 1994 c 141 s 2 are each reenacted and amended to read as follows:

Failure to perform any act required or the performance of any act prohibited by this title or an equivalent administrative regulation or local law, ordinance, regulation, or resolution relating to traffic including parking, standing, stopping, and pedestrian offenses, is designated as a traffic infraction and may not be classified as a criminal offense, except for an offense contained in the following provisions of this title or a violation of an equivalent administrative regulation or local law, ordinance, regulation, or resolution:

(1) RCW 46.09.120(2) relating to the operation of a nonhighway vehicle while under the influence of intoxicating liquor or a controlled substance;

(2) RCW 46.09.130 relating to operation of nonhighway vehicles;

(3) RCW 46.10.090(2) relating to the operation of a snowmobile while under the influence of intoxicating liquor or narcotics or habit‑forming drugs or in a manner endangering the person of another;

(4) RCW 46.10.130 relating to the operation of snowmobiles;

(5) Chapter 46.12 RCW relating to certificates of ownership and registration;

(6) RCW 46.16.010 relating to initial registration of motor vehicles;

(7) RCW 46.16.011 relating to permitting unauthorized persons to drive;

(8) RCW 46.16.160 relating to vehicle trip permits;

(9) RCW 46.16.381 (6) or (9) relating to unauthorized use or acquisition of a special placard or license plate for disabled persons' parking;

(10) RCW 46.20.021 relating to driving without a valid driver's license;

(11) RCW 46.20.--- (section 18 of this act) relating to refusal to submit to a breath or blood test;

(12) RCW 46.20.336 relating to the unlawful possession and use of a driver's license;

((~~(12)~~)) (13) RCW 46.20.342 relating to driving with a suspended or revoked license or status;

((~~(13)~~)) (14) RCW 46.20.410 relating to the violation of restrictions of an occupational driver's license;

((~~(14)~~)) (15) RCW 46.20.420 relating to the operation of a motor vehicle with a suspended or revoked license;

((~~(15)~~)) (16) RCW 46.20.750 relating to assisting another person to start a vehicle equipped with an ignition interlock device;

((~~(16)~~)) (17) RCW 46.25.170 relating to commercial driver's licenses;

((~~(17)~~)) (18) Chapter 46.29 RCW relating to financial responsibility;

((~~(18)~~)) (19) RCW 46.30.040 relating to providing false evidence of financial responsibility;

((~~(19)~~)) (20) RCW 46.37.435 relating to wrongful installation of sunscreening material;

((~~(20)~~)) (21) RCW 46.44.180 relating to operation of mobile home pilot vehicles;

((~~(21)~~)) (22) RCW 46.48.175 relating to the transportation of dangerous articles;

((~~(22)~~)) (23) RCW 46.52.010 relating to duty on striking an unattended car or other property;

((~~(23)~~)) (24) RCW 46.52.020 relating to duty in case of injury to or death of a person or damage to an attended vehicle;

((~~(24)~~)) (25) RCW 46.52.090 relating to reports by repairmen, storagemen, and appraisers;

((~~(25)~~)) (26) RCW 46.52.100 relating to driving under the influence of liquor or drugs;

((~~(26)~~)) (27) RCW 46.52.130 relating to confidentiality of the driving record to be furnished to an insurance company, an employer, and an alcohol/drug assessment or treatment agency;

((~~(27)~~)) (28) RCW 46.55.020 relating to engaging in the activities of a registered tow truck operator without a registration certificate;

((~~(28)~~)) (29) RCW 46.55.035 relating to prohibited practices by tow truck operators;

((~~(29)~~)) (30) RCW 46.61.015 relating to obedience to police officers, flagmen, or fire fighters;

((~~(30)~~)) (31) RCW 46.61.020 relating to refusal to give information to or cooperate with an officer;

((~~(31)~~)) (32) RCW 46.61.022 relating to failure to stop and give identification to an officer;

((~~(32)~~)) (33) RCW 46.61.024 relating to attempting to elude pursuing police vehicles;

((~~(33)~~)) (34) RCW 46.61.500 relating to reckless driving;

((~~(34)~~)) (35) RCW 46.61.502((,)) and 46.61.504((~~, 46.61.5051, 46.61.5052, and 46.61.5053~~)) relating to persons under the influence of intoxicating liquor or drugs;

((~~(35)~~)) (36) RCW 46.61.--- (section 9 of this act) relating to a person under age twenty-one driving a motor vehicle after consuming alcohol;

(37) RCW 46.61.520 relating to vehicular homicide by motor vehicle;

((~~(36)~~)) (38) RCW 46.61.522 relating to vehicular assault;

((~~(37)~~)) (39) RCW 46.61.525 relating to negligent driving;

((~~(38)~~)) (40) RCW 46.61.527(4) relating to reckless endangerment of roadway workers;

((~~(39)~~)) (41) RCW 46.61.530 relating to racing of vehicles on highways;

((~~(40)~~)) (42) RCW 46.61.685 relating to leaving children in an unattended vehicle with the motor running;

((~~(41)~~)) (43) RCW 46.64.010 relating to unlawful cancellation of or attempt to cancel a traffic citation;

((~~(42)~~)) (44) RCW 46.64.048 relating to attempting, aiding, abetting, coercing, and committing crimes;

((~~(43)~~)) (45) Chapter 46.65 RCW relating to habitual traffic offenders;

((~~(44)~~)) (46) Chapter 46.70 RCW relating to unfair motor vehicle business practices, except where that chapter provides for the assessment of monetary penalties of a civil nature;

((~~(45)~~)) (47) Chapter 46.72 RCW relating to the transportation of passengers in for hire vehicles;

((~~(46)~~)) (48) Chapter 46.80 RCW relating to motor vehicle wreckers;

((~~(47)~~)) (49) Chapter 46.82 RCW relating to driver's training schools;

((~~(48)~~)) (50) RCW 46.87.260 relating to alteration or forgery of a cab card, letter of authority, or other temporary authority issued under chapter 46.87 RCW;

((~~(49)~~)) (51) RCW 46.87.290 relating to operation of an unregistered or unlicensed vehicle under chapter 46.87 RCW.

PART IV - DEFERRED PROSECUTION

Sec. 20. 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~~)) written diagnostic evaluation and recommended treatment prepared by an approved ((~~alcoholism~~)) treatment ((~~facility as designated in chapter 70.96A RCW~~)) program, as defined by RCW 70.96A.020 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 defined by RCW 71.24.025, if the petition alleges a mental problem.

The secretary of social and health services shall periodically provide to courts of limited jurisdiction and superior courts a list of the approved treatment programs and licensed service providers in the county in which the court is located. The court shall not approve the treatment unless the approved treatment program or licensed service provider preparing the written diagnostic evaluation and recommended treatment and the approved treatment program or licensed service provider proposing to administer the treatment 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) an acknowledgement and waiver of the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to jury trial; (c) a stipulation to the admissibility of the facts contained in the written police report; and ((~~(c)~~)) (d) an acknowledgement that the ((~~statement~~)) report 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)) The petitioner 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) The petitioner shall state in his or her petition any other offenses or cases for which the petitioner has, is, or will be seeking a deferred prosecution and the court shall not enter an order granting the deferred prosecution for offenses committed more than seven days apart, and shall advise the petitioner that any attempt to seek a deferred prosecution for offenses committed more than seven days apart will be a breach of the conditions of deferred prosecution.

(4) 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 has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial; (d) the petitioner's statements, stipulations, acknowledgements, and waivers were made knowingly and voluntarily; (e) the petitioner qualifies for deferred prosecution; and (f) the proposed treatment includes, at a minimum: (i) The frequency and type of contact between the petitioner and the treatment program, (ii) the specific issues to be addressed in the treatment and description of proposed treatment, (iii) the monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others, (iv) anticipated length of treatment, and (v) recommended prohibitions relating to use of alcohol or drugs. Such findings shall be included in the order granting deferred prosecution.

Sec. 21. RCW 10.05.030 and 1975 1st ex.s. c 244 s 3 are each amended to read as follows:

The arraigning judge upon consideration of the petition ((~~and with the concurrence of the prosecuting attorney~~)) may continue the arraignment and refer such person for a diagnostic ((~~investigation and~~)) evaluation to an approved ((~~alcoholism~~)) treatment ((~~facility as designated in chapter 70.96A RCW~~)) program, if the petition alleges an alcohol or drug problem((~~, an approved drug treatment center as designated in chapter 71.24 RCW, if the petition alleges a drug problem, or to an approved mental health center,~~)) or to a licensed service provider if the petition alleges a mental problem.

Sec. 22. RCW 10.05.040 and 1985 c 352 s 7 are each amended to read as follows:

The ((~~facility~~)) approved treatment program or licensed service provider to which such person is referred shall conduct an ((~~investigation and examination~~)) evaluation to determine:

(1) Whether the person suffers from the problem described;

(2) Whether the problem is such that if not treated there is a probability that similar misconduct will occur in the future;

(3) Whether extensive and long term treatment is required;

(4) Whether effective treatment for the person's problem is available; and

(5) Whether the person is amenable to treatment.

Sec. 23. RCW 10.05.050 and 1985 c 352 s 8 are each amended to read as follows:

The ((~~facility~~)) approved treatment program or licensed service provider shall make a written ((~~report to the court~~)) diagnostic evaluation stating its findings and recommendations after the ((~~examination~~)) evaluation required by RCW 10.05.040. If its findings and recommendations support treatment, it shall also recommend a treatment ((~~plan~~)) setting out:

(1) The type;

(2) Nature;

(3) Length;

(4) A treatment time schedule; and

(5) Approximate cost of the treatment.

((~~The report with the treatment plan~~)) If the written diagnostic evaluation and recommended treatment is used in support of a petition for deferred prosecution, the evaluation and treatment shall be filed with the court and a copy given to the petitioner ((~~and~~)), petitioner's counsel((~~. A copy of the treatment plan shall be given to the prosecutor by petitioner's counsel at the request of~~)), and the prosecutor. The ((~~evaluation facility~~)) approved treatment program or licensed service provider making the written ((~~report~~)) diagnostic evaluation and recommended treatment shall ((~~append to the report a commitment by the treatment facility that it~~)) include the name of the approved treatment program or licensed service provider that will provide the treatment in accordance with this chapter. The ((~~facility~~)) approved treatment program or licensed service provider that will provide the treatment shall agree to provide the court with a statement every three months for the first year and every six months for the second year regarding (a) the petitioner's cooperation with the treatment ((~~plan~~)) proposed and (b) the petitioner's progress or failure in treatment. These statements shall be made as a declaration by the person who is personally responsible for providing the treatment.

Sec. 24. RCW 10.05.060 and 1994 c 275 s 17 are each amended to read as follows:

If the ((~~report~~)) written diagnostic evaluation recommends treatment, the court shall examine the treatment ((~~plan~~)). If it approves the ((~~plan~~)) recommended treatment 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, the date of the violation for which the charge was made, 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, but a deferred prosecution for a violation of RCW 46.61.502 or 46.61.504 shall be considered a conviction under RCW 46.61.502 or 46.61.504 for purposes of imposing a mandatory minimum sentence under RCW 46.61.5051 for subsequent offenses within a five-year period. Upon receipt of the abstract of the docket, the department shall ((~~issue the petitioner a probationary license in accordance with RCW 46.20.355, and the petitioner's driver's license shall be on~~)) place the petitioner's driving privilege in probationary status ((~~for five years from the date of the violation that gave rise to the charge~~)), pursuant to RCW 46.20.355. The department shall maintain the record for ten years from date of entry of the order granting deferred prosecution.

Sec. 25. RCW 10.05.090 and 1994 c 275 s 18 are each amended to read as follows:

(1) 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 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 social and health services of such failure to report. After notification under this section, the secretary of social and health services shall fine such approved treatment program or licensed service provider two hundred fifty dollars, and after three notifications under this section within one year, the secretary of social and health services shall revoke the license or certification of such approved treatment program or licensed service provider. If the secretary imposes a fine under this subsection, the fine must be paid within ninety days of notice of its imposition or the secretary shall revoke the license of the approved treatment program or licensed service provider.

(2) 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 and, if the charge for which the deferred prosecution was granted was a misdemeanor or gross misdemeanor under Title 46 RCW, shall notify the department of licensing of the removal and entry of judgment.

Sec. 26. RCW 10.05.100 and 1985 c 352 s 13 are each amended to read as follows:

(1) If ((a)), after notice to the petitioner and a hearing, the court finds, by a preponderance of the evidence and regardless of the prosecution status of the similar offense, that the petitioner ((~~is subsequently~~)) committed or was 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.

(2) If the charge for which the deferred prosecution was granted was a misdemeanor or gross misdemeanor under Title 46 RCW, the court shall notify the department of licensing of the removal and entry of judgment.

(3) For the purposes of this section, "convicted" means an unvacated forfeiture of bail or collateral deposited to secure a defendant's appearance in court, the payment of a fine, and any adjudication of guilt, including a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty. 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 and any "alcohol-related" offense, as defined by RCW 46.01.260(2).

Sec. 27. RCW 10.05.120 and 1994 c 275 s 19 are each amended to read as follows:

(1) Upon proof of successful completion of the two-year treatment program and verification that the petitioner has not been convicted of or found by any court to have committed a similar offense within two years after the date of entry of the order granting deferred prosecution, the court shall dismiss the charges pending against the petitioner. A successfully completed deferred prosecution for a violation of RCW 46.61.502 or 46.61.504 shall be considered a conviction under RCW 46.61.502 or 46.61.504 for purposes of imposing a mandatory minimum sentence under RCW 46.61.5051 for subsequent offenses within a five-year period.

(2) If the charge for which the deferred prosecution was granted was a misdemeanor or gross misdemeanor under Title 46 RCW, the court shall notify the department of licensing of the dismissal.

Sec. 28. 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~~)): (1) Not operate a motor vehicle ((~~upon the public highways~~)) within this state without a valid operator's license and proof of ((~~liability insurance. The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490~~)) compliance with RCW 46.30.020, (2) 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 (3) 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 court shall not grant a deferred prosecution unless the petitioner has executed all acknowledgements, stipulations, and waivers specified in RCW 10.05.020. 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 terminate the deferred prosecution program upon violation of this section.~~)) Upon violation of any of the conditions authorized or required by this section, the court shall remove the petitioner from the deferred prosecution program and shall enter judgment pursuant to RCW 10.05.020. If the charge for which the deferred prosecution was granted was a misdemeanor or gross misdemeanor under Title 46 RCW, the court shall notify the department of licensing of the removal and entry of judgment.

Sec. 29. 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 10.05.020, 10.05.090, 10.05.100, or 10.05.140;

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

Sec. 30. 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 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 appoint the probation department to supervise the petitioner. In a jurisdiction without a probation department, the court may 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 and the prosecutor if the petitioner has been convicted of any criminal traffic offense or any "alcohol-related" offense, as defined by RCW 46.01.260(2). For purposes of this section, "convicted" means an unvacated forfeiture of bail or collateral deposited to secure a defendant's appearance in court, the payment of a fine, and any adjudication of guilt, including a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty; 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 and notify the court and the prosecutor if the petitioner has failed or neglected to carry out and fulfill any term or condition of the treatment.

PART V - PROBATIONARY LICENSE

Sec. 31. RCW 46.20.355 and 1994 c 275 s 8 are each amended to read as follows:

(1) Upon notification of a ((~~conviction under RCW 46.61.502 or 46.61.504 for which the issuance of a probationary driver's license is required,~~)) sentence imposed under RCW 46.61.5051 or section 9 of this act, upon receipt of a report under RCW 46.20.365, or upon receipt of an abstract indicating a deferred prosecution has been granted under RCW 10.05.060, the department of licensing shall order the person to surrender his or her Washington license. Unless the person previously has surrendered his or her Washington license to a law enforcement officer, to the department, to a court, or to the prosecutor or has completed an affidavit of lost, stolen, destroyed, or previously surrendered license, the department shall revoke the license, permit, or privilege to drive of any person who fails to surrender it as required by this section for one year, effective thirty days after notice is given of the requirement of license surrender.

(2) ((Upon receipt of the surrendered license, and following the expiration of any period of license suspension or revocation, or following receipt of a sworn statement under RCW 46.20.365 that requires issuance of a probationary license, the department shall issue the person a probationary license if otherwise qualified. The probationary license shall be renewed on the same cycle as the person's regular license would have been renewed until five years after the date of its issuance.)) Upon notification of a sentence imposed under RCW 46.61.5051 or section 9 of this act, upon receipt of a report under RCW 46.20.365, or upon receipt of an abstract indicating a deferred prosecution has been granted under RCW 10.05.060, the department shall place a person's driving privilege in probationary status for five years from the date of the arrest that gave rise to placement in probationary status pursuant to RCW 46.61.5051, 46.20.365, or 10.05.060.

(3) After expiration of any period of suspension, revocation, or denial, a person whose driving privilege is in probationary status must obtain a probationary license in order to operate a motor vehicle in this state, unless exempt under RCW 46.20.025. The department shall not issue a probationary license unless the person is otherwise qualified for licensing. A probationary license shall be renewed on the same cycle as the person's regular license would have been renewed until the probationary status expires. Possession of a probationary license, or having a driving privilege in probationary status, does not authorize a person to drive during a period of suspension, revocation, or denial of the person's license, permit, or privilege to drive.

(4) For each original issue or ((~~reissue~~)) renewal of a probationary license under this section, the department ((~~may~~)) shall charge ((~~the~~)) a fee ((~~authorized under RCW 46.20.311 for the reissuance of a license following a revocation for a violation of RCW 46.61.502 or 46.61.504~~)) of fifty dollars in addition to any other licensing fees required.

((~~(4)~~)) (5) A probationary license shall enable the department and law enforcement personnel to determine that the person is on probationary status((~~, including the period of that status, for a violation of RCW 46.61.502 or 46.61.504 or 46.20.365~~)). ((~~That~~)) The fact that a person's driving privilege is in probationary status or that the person has been issued a probationary license shall not be a part of the person's record that is available to insurance companies.

PART VI - REINSTATEMENT

Sec. 32. RCW 46.20.311 and 1994 c 275 s 27 are each amended to read as follows:

(1) The department shall not suspend a driver's license, permit, or privilege to drive a motor vehicle on the public highways for a fixed period of more than one year, except as specifically permitted under RCW 46.20.342 or other provision of law. Except for a suspension under RCW 46.20.289 and 46.20.291(5), whenever the license, permit, 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 46.20.365, or because of a violation of a mandatory condition of probation imposed under RCW 46.61.5051, the suspension 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. If the suspension is imposed under RCW 46.20.365 or 46.61.5051, the department shall determine the person's eligibility for licensing based upon the written diagnostic evaluation and recommended treatment prepared pursuant to RCW 46.61.5056 or prepared by an approved treatment provider as defined by RCW 70.96A.020 and shall not reinstate the person's driving privilege until the person completes a course in an approved alcohol information school or establishes participation in any required treatment. 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 ((~~the result of a violation of RCW 46.61.502 or 46.61.504~~)) imposed under section 18 of this act, RCW 46.20.365, or 46.61.5051, the reissue fee ((~~shall be fifty~~)) is one hundred dollars.

(2) Any person whose license, permit, 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, permit, or privilege renewed or restored until: (a) After the expiration of one year from the date the license, permit, or privilege to drive was revoked; (b) after the expiration of the applicable revocation period provided by section 18 of this act, RCW ((~~46.20.308 or 46.61.5052, 46.61.5053, or~~)) 46.20.365, or 46.61.5051; (c) after the expiration of two years for persons convicted of vehicular homicide; or (d) after the expiration of the applicable revocation period provided by RCW 46.20.265. If the revocation is imposed under RCW 46.20.365 or 46.61.5051, the department shall determine the person's eligibility for licensing based upon the written diagnostic evaluation and recommended treatment prepared pursuant to RCW 46.61.5056 or prepared by an approved treatment provider as defined by RCW 70.96A.020 and shall not reinstate the person's driving privilege until the person completes a course in an approved alcohol information school or establishes participation in any required treatment. 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 or is the result of administrative action~~)) imposed under section 18 of this act, RCW 46.20.365, or 46.61.5051, the reissue fee ((~~shall be fifty~~)) is 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~~)) for alcohol concentration, or (c) the result of a test of the driver's breath or blood showing an alcohol concentration of 0.08 or more, or 0.02 or more if the driver is under the age of twenty-one years, the reissue fee ((~~shall be fifty~~)) is one hundred dollars.

PART VII - TECHNICAL

Sec. 33. RCW 46.04.480 and 1994 c 275 s 38 are each amended to read as follows:

"Revoke," in all its forms, means the invalidation for a period of one calendar year and thereafter until reissue: PROVIDED, That under the provisions of RCW 46.20.285, section 18 of this act, 46.20.311, 46.20.265, 46.20.365, 46.61.5051, ((~~46.61.5052, or 46.61.5053,~~)) and chapter 46.65 RCW the invalidation may last for a period other than one calendar year.

Sec. 34. RCW 46.04.015 and 1994 c 275 s 1 are each amended to read as follows:

"Alcohol concentration" means (1) grams of alcohol per two hundred ten liters of a person's breath, or (2) ((~~the percent by weight of alcohol in~~)) grams of alcohol per one hundred milliliters of a person's blood.

Sec. 35. RCW 46.20.391 and 1994 c 275 s 29 are each amended to read as follows:

(1) Any person licensed under this chapter who is suspended under RCW 46.20.365(3)(a)(i) or who is convicted of an offense relating to motor vehicles for which suspension or revocation of the driver's license is mandatory, other than vehicular homicide or vehicular assault, may submit to the department an application for an occupational driver's license. The department, upon receipt of the prescribed fee and upon determining that the petitioner is engaged in an occupation or trade that makes it essential that the petitioner operate a motor vehicle, may issue an occupational driver's license and may set definite restrictions as provided in RCW 46.20.394. No person may petition for, and the department shall not issue, an occupational driver's license that is effective during the first thirty days of any suspension or revocation under RCW 46.20.365(3)(a)(i), imposed for a violation of section 18 of this act, RCW 46.61.502, or 46.61.504. No person may petition for, and the department shall not issue, an occupational driver's license if the person is ineligible for such a license under RCW ((~~46.61.5052 or 46.61.5053~~)) 46.61.5051(8). A person aggrieved by the decision of the department on the application for an occupational driver's license may request a hearing as provided by rule of the department.

(2) An applicant for an occupational driver's license is eligible to receive such license only if:

(a) Within one year immediately preceding the date of the offense that gave rise to the present conviction or suspension under RCW 46.20.365(3)(a)(i), the applicant has not committed ((of)) any ((~~[committed any]~~)) offense relating to motor vehicles for which suspension or revocation of a driver's license is mandatory; and

(b) Within five years immediately preceding the date of the offense that gave rise to the present conviction or suspension under RCW 46.20.365(3)(a)(i), the applicant has not committed any of the following offenses: (i) Driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor under RCW 46.61.502 or 46.61.504; (ii) refusal to submit to a breath or blood test under section 18 of this act; (iii) vehicular homicide under RCW 46.61.520; or ((~~(iii)~~)) (iv) vehicular assault under RCW 46.61.522; and

(c) The applicant is engaged in an occupation or trade that makes it essential that he or she operate a motor vehicle; and

(d) The applicant files satisfactory proof of financial responsibility pursuant to chapter 46.29 RCW.

(3) The director shall cancel an occupational driver's license upon receipt of notice that the holder thereof has been convicted of operating a motor vehicle in violation of its restrictions, or of an offense that pursuant to chapter 46.20 RCW would warrant suspension or revocation of a regular driver's license. The cancellation is effective as of the date of the conviction, and continues with the same force and effect as any suspension or revocation under this title.

Sec. 36. RCW 3.62.090 and 1994 c 275 s 34 are each amended to read as follows:

(1) There shall be assessed and collected in addition to any fines, forfeitures, or penalties assessed, other than for parking infractions, by all courts organized under Title 3 or 35 RCW a public safety and education assessment equal to sixty percent of such fines, forfeitures, or penalties, which shall be remitted as provided in chapters 3.46, 3.50, 3.62, and 35.20 RCW. The assessment required by this section shall not be suspended or waived by the court.

(2) There shall be assessed and collected in addition to any fines, forfeitures, or penalties assessed, other than for parking infractions and for fines levied under RCW 46.61.5051((~~, 46.61.5052, and 46.61.5053~~)), and in addition to the public safety and education assessment required under subsection (1) of this section, by all courts organized under Title 3 or 35 RCW, an additional public safety and education assessment equal to fifty percent of the public safety and education assessment required under subsection (1) of this section, which shall be remitted to the state treasurer and deposited as provided in RCW 43.08.250. The additional assessment required by this subsection shall not be suspended or waived by the court.

PART VIII - MISCELLANEOUS

NEW SECTION. Sec. 37. A new section is added to chapter 46.20 RCW to read as follows:

The department of licensing shall report to the appropriate legislative committees and the governor by January 31st of each year regarding the number of hearings requested and conducted under RCW 46.20.365, the number of those hearings at which the suspension, revocation, or denial of the person's license, permit, or privilege to drive was sustained and rescinded, and the reason for the rescission, the length of the period following the arrest in which those hearings were conducted, and any other information that the director believes would be useful in evaluating the procedures required by RCW 46.20.365.

NEW SECTION. Sec. 38. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 39. The following acts or parts of acts are each repealed:

(1) RCW 46.20.309 and 1994 c 275 s 10; and

(2) RCW 46.61.5057 and 1994 c 275 s 11.

NEW SECTION. Sec. 40. The following acts or parts of acts are each repealed:

(1) RCW 46.61.5052 and 1994 c 275 s 5; and

(2) RCW 46.61.5053 and 1994 c 275 s 6.

NEW SECTION. Sec. 41. 1994 c 275 s 44 (uncodified) is repealed.

NEW SECTION. Sec. 42. This act shall be known as the "1995 DUI improvement act."

NEW SECTION. Sec. 43. Part headings and the table of contents as used in this act do not constitute any part of the law.

NEW SECTION. Sec. 44. (1) Sections 1 through 3, 5 through 8, 12 through 14, 24, 27, 33, 35, 40, and 41 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.

(2) Sections 4, 9 through 11, 15 through 23, 25, 26, 28 through 32, 34, 36 through 39, 42, and 43 of this act shall take effect August 1, 1995.