HB 1183

Title: An act relating to driving or physical control of a vehicle while under the influence of intoxicating liquor or any drug.

Brief Description: Increasing penalties for driving or physical control while under the influence.

Sponsors: Representative Delvin.

Hearing Date: 1/30/03

Staff: Bill Perry (786-7123).

Background:

DUI LAW. Driving while under the influence of alcohol (DUI) is a gross misdemeanor. The maximum confinement sentence for a gross misdemeanor is one year in jail. The DUI law contains a complex system of mandatory minimum penalties that escalate based on several factors. These factors include the number of prior offenses and the offender's breath or blood alcohol concentration (BAC). The mandatory minimum jail sentences range from one day in jail (or 15 days of electronic home monitoring) for a first-time offender with a low BAC, to 120 days in jail (and 150 days of electronic home monitoring) for a third-time offender with a high BAC.

In this system of escalating mandatory minimum sentences, a "prior" offense counts if the arrest for that offense occurred withing seven years of the arrest for the current offense. Offenses that counts as priors include not only DUI, but also vehicular assault and vehicular homicide. In addition, a deferred prosecution granted to a person charged with DUI counts as a prior offense. Even though successful completion of a deferred prosecution treatment program means charges are dropped, the deferral still counts as a prior offense under the DUI law. Deferred prosecutions are available only for non-felony crimes. (Portions of this law that would allow certain other offenses to count as prior only if originally charged as DUI have been invalidated by the courts.)

In addition to serving mandatory jail time, a DUI offender is subject to many other sanctions. These include fines, loss of driving privileges, alcohol assessment, and may include the mandatory use of an ignition interlock system on any vehicle the offender drives. Periods of required interlock use begin after the restoration of driving privileges and may run for as much as 10 years.

DUI FELONIES IN OTHER STATES. Many states have felony DUI laws. One report indicates 41 states have some form of felony DUI law. Felony offenses are more serious than non-felony offenses in several ways. Maximum incarceration sentences for felonies are substantially longer. Other consequences of a felony conviction, such as loss of the right to possess a firearm and the social stigma associated with having a criminal background, are also generally more severe. However, it is difficult to make accurate comparisons between Washington's structured gross misdemeanor DUI law and these felony DUI laws in other states with respect to jail or prison time actually served by DUI offenders. Felony sentencing laws vary widely from state to state. Sentencing features such as indeterminate sentencing, judicial discretion, good-time early release, probation, and parole can result in the sentences imposed being dramatically different from the sentences served.

FELONY SENTENCING UNDER THE SENTENCING REFORM ACT. Washington's Sentencing Reform Act (SRA) is a presumptive and determinate felony sentencing system. This system is designed so that sentences will generally fall within a relatively narrow range for each offense. It is also designed so that it will be known with relative certainty at the time of sentencing how long an offender will be in prison.

The SRA is said to be "presumptive" because relatively narrow sentence ranges are set out in a statutory grid. It is presumed that most sentences will fall within the prescribed ranges, although exceptional sentences above or below the range are possible if there are aggravating or mitigating circumstances. A range is determined by two factors, an offender's prior criminal history and the seriousness of the current offense for which he or she is being sentenced. On the statutory grid, the presumptive range is determined by the intersection of the offender's history "score" and the seriousness level "ranking" of the current offense. An offender's score is determined by past convictions. Most convictions count as one point, but some may count as two. For instance, a prior vehicular homicide or assault counts as two points if the current conviction is a felony traffic offense. Felonies are "ranked" from Level I to Level XVI. A few prior non-felony crimes can count toward an offender's score in sentencing for a current felony. "Serious traffic" offenses are non-felony crimes that count when the current offense is a felony traffic offense. Serious traffic offenses include DUI, reckless driving, and hit-and-run driving. The SRA has "washout" periods that determine how long a prior conviction continues to count toward an offender's score. Class C felonies and serious traffic offenses wash out if the offender has spent five years without committing an offense since the date of his or her release from confinement.

Although the SRA is said to be "determinate" because at the time of sentencing the length of incarceration actually to be served is known with relative certainty, for some less serious offenses an offender may earn an early release of up to one-third off a sentence.

The SRA grid establishes sentencing ranges that increase with an offender's criminal history. However, in no case may a sentence be longer than the maximum allowed by statute for a particular class of felony. For class C felonies, this maximum is five years in prison.

All felonies that are ranked on the SRA grid are subject to these rules about determining a sentence. However, certain less serious offenses committed by a first-time offender may qualify for a waiver of the ordinary rules. For such offenses, the court has broad discretion in sentencing and may give jail sentences of up to 90 days and community service of up to one year.

COSTS OF INCARCERATION. Local jurisdictions bear the costs of incarceration when a sentence of one year or less is given. Because one year is the maximum sentence for a gross misdemeanor, all costs of incarcerating DUI offenders are borne by cities and counties. The state pays for the costs of incarceration for offenders sentenced to more than one year.

Summary of Bill:

DUI becomes a class C felony when an offender has three or more prior offenses within seven years. Prior offenses that count for making a current DUI a felony include:

•          DUI convictions.

•          Vehicular homicide convictions.

•          Vehicular assault convictions.

•          Deferred prosecutions for DUI.

Felony DUI is ranked at Level IV under the SRA. This ranking means that for a first-time felony DUI offender with no priors beyond those necessary to make the crime a felony, the presumptive sentence range would be 13 to 17 months in prison.

The SRA wash out rule for class C felony traffic offenses and for non-felony serious traffic offenses is altered to include both the five-year washout period and the seven-year DUI counting period. The time required before a class C felony traffic offense may be vacated is increased to seven years.

Felony DUI offenders are made ineligible for first-time offender waivers under the SRA.

Electronic home monitoring and ignition interlock provisions are expressly made applicable to felony DUI offenders.

Appropriation: None.

Fiscal Note: Preliminary fiscal note available.

Effective Date: Ninety days after adjournment of session in which bill is passed.