Passed by the House February 12, 2004 Yeas 93   FRANK CHOPP ________________________________________ Speaker of the House of Representatives Passed by the Senate March 2, 2004 Yeas 48   BRAD OWEN ________________________________________ President of the Senate | I, Richard Nafziger, Chief Clerk of the House of Representatives of the State of Washington, do hereby certify that the attached is SUBSTITUTE HOUSE BILL 3055 as passed by the House of Representatives and the Senate on the dates hereon set forth. RICHARD NAFZIGER ________________________________________ Chief Clerk | |
Approved March 22, 2004. GARY F. LOCKE ________________________________________ Governor of the State of Washington | March 22, 2004 - 5:14 p.m. Secretary of State State of Washington |
State of Washington | 58th Legislature | 2004 Regular Session |
READ FIRST TIME 02/06/04.
AN ACT Relating to admissibility of DUI tests; amending RCW 46.61.506; reenacting and amending RCW 46.20.308 and 46.20.3101; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that previous attempts
to curtail the incidence of driving while intoxicated have been
inadequate. The legislature further finds that property loss, injury,
and death caused by drinking drivers continue at unacceptable levels.
This act is intended to convey the seriousness with which the
legislature views this problem. To that end the legislature seeks to
ensure swift and certain consequences for those who drink and drive.
To accomplish this goal, the legislature adopts standards governing
the admissibility of tests of a person's blood or breath. These
standards will provide a degree of uniformity that is currently
lacking, and will reduce the delays caused by challenges to various
breath test instrument components and maintenance procedures. Such
challenges, while allowed, will no longer go to admissibility of test
results. Instead, such challenges are to be considered by the finder
of fact in deciding what weight to place upon an admitted blood or
breath test result.
The legislature's authority to adopt standards governing the
admissibility of evidence involving alcohol is well established by the
Washington Supreme Court. See generally State v. Long, 113 Wn.2d 266,
778 P.2d 1027 (1989); State v. Sears, 4 Wn.2d 200, 215, 103 P.2d 337
(1940) (the legislature has the power to enact laws which create rules
of evidence); State v. Pavelich, 153 Wash. 379, 279 P. 1102 (1929)
("rules of evidence are substantive law").
Sec. 2 RCW 46.20.308 and 1999 c 331 s 2 and 1999 c 274 s 2 are
each reenacted and 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 alcohol concentration or presence of any
drug in 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 RCW 46.61.503. Neither
consent nor this section precludes a police officer from obtaining a
search warrant for a person's breath or blood.
(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 or any drug or the person to have been driving or
in actual physical control of a motor vehicle while having alcohol in
a concentration in violation of RCW 46.61.503 in his or her system and
being under the age of twenty-one. However, in those instances where
the person is incapable due to physical injury, physical incapacity, or
other physical limitation, of providing a breath sample or where the
person is being treated in a hospital, clinic, doctor's office,
emergency medical vehicle, ambulance, or other similar facility ((in
which a breath testing instrument is not present)) or where the officer
has reasonable grounds to believe that the person is under the
influence of a drug, a blood test shall be administered by a qualified
person as provided in RCW 46.61.506(((4))) (5). 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:)) The officer shall warn the driver, in substantially the
following language, that:
(a) His or her license, permit, or privilege to drive will be
revoked or denied if he or she refuses to submit to the test;
(b) His or her license, permit, or privilege to drive will be
suspended, revoked, or denied if the test is administered and the test
indicates the alcohol concentration of the person's breath or blood is
0.08 or more, in the case of a person age twenty-one or over, or in
violation of RCW 46.61.502, 46.61.503, or 46.61.504 in the case of a
person under age twenty-one; and
(c) His or her refusal to take the test may be used in a criminal
trial.
(a) If the driver refuses to take the test, the driver's license,
permit, or privilege to drive will be revoked or denied for at least
one year; and
(b) If the driver refuses to take the test, the driver will not be
eligible for an occupational permit; and
(c) If the driver refuses to take the test, the driver's refusal to
take the test may be used in a criminal trial; and
(d) If the driver submits to the test and the test is administered,
the driver's license, permit, or privilege to drive will be suspended,
revoked, or denied for at least ninety days if the driver is age
twenty-one or over and the test indicates the alcohol concentration of
the driver's breath or blood is 0.08 or more, or if the driver is under
age twenty-one and the test indicates the alcohol concentration of the
driver's breath or blood is 0.02 or more, or if the driver is under age
twenty-one and the driver is in violation of RCW 46.61.502 or
46.61.504.
(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 there has been serious bodily injury
to another person, 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) If, after arrest and after the other applicable conditions and
requirements of this section have been satisfied, a test or tests of
the person's blood or breath is administered and the test results
indicate that the alcohol concentration of the person's breath or blood
is 0.08 or more if the person is age twenty-one or over, or ((is in
violation of RCW 46.61.502, 46.61.503, or 46.61.504)) 0.02 or more if
the person is under the age of twenty-one, or the person refuses to
submit to a test, the arresting officer or other law enforcement
officer at whose direction any test has been given, or the department,
where applicable, if the arrest results in a test of the person's
blood, shall:
(a) Serve notice in writing on the person on behalf of the
department of its intention to suspend, revoke, or deny the person's
license, permit, or privilege to drive as required by subsection (7) of
this section;
(b) Serve notice in writing on the person on behalf of the
department of his or her right to a hearing, specifying the steps he or
she must take to obtain a hearing as provided by subsection (8) of this
section;
(c) Mark the person's Washington state driver's license or permit
to drive, if any, in a manner authorized by the department;
(d) Serve notice in writing that the marked license or permit, if
any, is a temporary license that is valid for sixty days from the date
of arrest or from the date notice has been given in the event notice is
given by the department following a blood test, or until the
suspension, revocation, or denial of the person's license, permit, or
privilege to drive is sustained at a hearing pursuant to subsection (8)
of this section, whichever occurs first. No temporary license is valid
to any greater degree than the license or permit that it replaces; and
(e) Immediately notify the department of the arrest and transmit to
the department within seventy-two hours, except as delayed as the
result of a blood test, a sworn report or report under a declaration
authorized by RCW 9A.72.085 that states:
(i) 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 or drugs, or both, or was under the age of twenty-one years and
had been driving or was in actual physical control of a motor vehicle
while having an alcohol concentration in violation of RCW 46.61.503;
(ii) That after receipt of the warnings required by subsection (2)
of this section the person refused to submit to a test of his or her
blood or breath, or a test was administered and the results indicated
that the alcohol concentration of the person's breath or blood was 0.08
or more if the person is age twenty-one or over, or was ((in violation
of RCW 46.61.502, 46.61.503, or 46.61.504)) 0.02 or more if the person
is under the age of twenty-one; and
(iii) Any other information that the director may require by rule.
(7) The department of licensing, upon the receipt of a sworn report
or report under a declaration authorized by RCW 9A.72.085 under
subsection (6)(e) of this section, shall suspend, revoke, or deny the
person's license, permit, or privilege to drive or any nonresident
operating privilege, as provided in RCW 46.20.3101, such suspension,
revocation, or denial to be effective beginning sixty days from the
date of arrest or from the date notice has been given in the event
notice is given by the department following a blood test, or when
sustained at a hearing pursuant to subsection (8) of this section,
whichever occurs first.
(8) A person receiving notification under subsection (6)(b) of this
section may, within thirty days after the notice has been given,
request in writing a formal hearing before the department. 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 thirty days after
receipt of the notification. Upon timely receipt of such a request for
a formal hearing, including receipt of the required one hundred dollar
fee, the department shall afford the person an opportunity for a
hearing. The department may waive the required one hundred dollar fee
if the person is an indigent as defined in RCW 10.101.010. 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 hearing shall be conducted in the county of the 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 sixty days following the arrest or
following the date notice has been given in the event notice is given
by the department following a blood test, unless otherwise agreed to by
the department and the person, in which case the action by the
department shall be stayed, and any valid temporary license marked
under subsection (6)(c) of this section extended, if the person is
otherwise eligible for licensing. For the purposes of this section,
the scope of the 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 or
any drug or had been driving or was in actual physical control of a
motor vehicle within this state while having alcohol in his or her
system in a concentration ((in violation of RCW 46.61.503 and)) of 0.02
or more if the person was under the age of twenty-one, whether the
person was placed under arrest, and (a) 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 license, permit, or privilege to drive, or (b) if a test or
tests were administered, whether the applicable requirements of this
section were satisfied before the administration of the test or tests,
whether the person submitted to the test or tests, or whether a test
was administered without express consent as permitted under this
section, and whether the test or tests indicated that the alcohol
concentration of the person's breath or blood was 0.08 or more if the
person was age twenty-one or over at the time of the arrest, or ((was
in violation of RCW 46.61.502, 46.61.503, or 46.61.504)) 0.02 or more
if the person was under the age of twenty-one at the time of the
arrest. The sworn report or report under a declaration authorized by
RCW 9A.72.085 submitted by a law enforcement officer is prima facie
evidence that the 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 or
drugs, or both, or the person had been driving or was in actual
physical control of a motor vehicle within this state while having
alcohol in his or her system in a concentration ((in violation of RCW
46.61.503)) of 0.02 or more and was under the age of twenty-one and
that the officer complied with the requirements of this section.
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 unless the request is accompanied by the fee required by RCW
5.56.010 for a witness in district court. The sworn report or report
under a declaration authorized by RCW 9A.72.085 of the law enforcement
officer and any other evidence accompanying the report shall be
admissible without further evidentiary foundation and the
certifications authorized by the criminal rules for courts of limited
jurisdiction shall be admissible without further evidentiary
foundation. The person may be represented by counsel, may question
witnesses, may present evidence, and may testify. The department shall
order that the suspension, revocation, or denial either be rescinded or
sustained.
(9) If the suspension, revocation, or denial is sustained after
such a hearing, the person whose license, privilege, or permit is
suspended, revoked, or denied has the right to file a petition in the
superior court of the county of arrest to review the final order of
revocation by the department in the same manner as an appeal from a
decision of a court of limited jurisdiction. Notice of appeal must be
filed within thirty days after the date the final order is served or
the right to appeal is waived. Notwithstanding RCW 46.20.334, RALJ
1.1, or other statutes or rules referencing de novo review, the appeal
shall be limited to a review of the record of the administrative
hearing. The appellant must pay the costs associated with obtaining
the record of the hearing before the hearing officer. The filing of
the appeal does not stay the effective date of the suspension,
revocation, or denial. A petition filed under this subsection must
include the petitioner's grounds for requesting review. Upon granting
petitioner's request for review, the court shall review the
department's final order of suspension, revocation, or denial as
expeditiously as possible. The review must be limited to a
determination of whether the department has committed any errors of
law. The superior court shall accept those factual determinations
supported by substantial evidence in the record: (a) That were
expressly made by the department; or (b) that may reasonably be
inferred from the final order of the department. The superior court
may reverse, affirm, or modify the decision of the department or remand
the case back to the department for further proceedings. The decision
of the superior court must be in writing and filed in the clerk's
office with the other papers in the case. The court shall state the
reasons for the decision. If judicial relief is sought for a stay or
other temporary remedy from the department's action, the court shall
not grant such relief unless the court 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.
(10) If a person whose driver's license, permit, or privilege to
drive has been or will be suspended, revoked, or denied under
subsection (7) of this section, other than as a result of a breath or
blood test refusal, and who has not committed an offense for which he
or she was granted a deferred prosecution under chapter 10.05 RCW,
petitions a court for a deferred prosecution on criminal charges
arising out of the arrest for which action has been or will be taken
under subsection (7) of this section, the court may direct the
department to stay any actual or proposed suspension, revocation, or
denial for at least forty-five days but not more than ninety days. If
the court stays the suspension, revocation, or denial, it may impose
conditions on such stay. If the person is otherwise eligible for
licensing, the department shall issue a temporary license, or extend
any valid temporary license marked under subsection (6) of this
section, for the period of the stay. 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, or if the person violates
any condition imposed by the court, then the court shall immediately
direct the department to cancel the stay and any temporary marked
license or extension of a temporary license issued under this
subsection.
A suspension, revocation, or denial imposed under this section,
other than as a result of a breath or blood test refusal, 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.
(11) When it has been finally determined under the procedures of
this section that a nonresident's privilege to operate a motor vehicle
in this state has been suspended, 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. 3 RCW 46.20.3101 and 1998 c 213 s 2, 1998 c 209 s 2, and
1998 c 207 s 8 are each reenacted and amended to read as follows:
Pursuant to RCW 46.20.308, the department shall suspend, revoke, or
deny the arrested person's license, permit, or privilege to drive as
follows:
(1) In the case of a person who has refused a test or tests:
(a) For a first refusal within seven years, where there has not
been a previous incident within seven years that resulted in
administrative action under this section, revocation or denial for one
year;
(b) For a second or subsequent refusal within seven years, or for
a first refusal where there has been one or more previous incidents
within seven years that have resulted in administrative action under
this section, revocation or denial for two years or until the person
reaches age twenty-one, whichever is longer. A revocation imposed
under this subsection (1)(b) shall run consecutively to the period of
any suspension, revocation, or denial imposed pursuant to a criminal
conviction arising out of the same incident.
(2) In the case of an incident where a person has submitted to or
been administered a test or tests indicating that the alcohol
concentration of the person's breath or blood was 0.08 or more:
(a) For a first incident within seven years, where there has not
been a previous incident within seven years that resulted in
administrative action under this section, suspension for ninety days;
(b) For a second or subsequent incident within seven years,
revocation or denial for two years.
(3) In the case of an incident where a person under age twenty-one
has submitted to or been administered a test or tests indicating that
the alcohol concentration of the person's breath or blood was ((in
violation of RCW 46.61.502, 46.61.503, or 46.61.504)) 0.02 or more:
(a) For a first incident within seven years, suspension or denial
for ninety days;
(b) For a second or subsequent incident within seven years,
revocation or denial for one year or until the person reaches age
twenty-one, whichever is longer.
Sec. 4 RCW 46.61.506 and 1998 c 213 s 6 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 0.08, 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)(a) A breath test performed by any instrument approved by the
state toxicologist shall be admissible at trial or in an administrative
proceeding if the prosecution or department produces prima facie
evidence of the following:
(i) The person who performed the test was authorized to perform
such test by the state toxicologist;
(ii) The person being tested did not vomit or have anything to eat,
drink, or smoke for at least fifteen minutes prior to administration of
the test;
(iii) The person being tested did not have any foreign substances,
not to include dental work, fixed or removable, in his or her mouth at
the beginning of the fifteen-minute observation period;
(iv) Prior to the start of the test, the temperature of the
simulator solution as measured by a thermometer approved of by the
state toxicologist was thirty-four degrees centigrade plus or minus 0.3
degrees centigrade;
(v) The internal standard test resulted in the message "verified";
(vi) The two breath samples agree to within plus or minus ten
percent of their mean to be determined by the method approved by the
state toxicologist;
(vii) The simulator external standard result did lie between .072
to .088 inclusive; and
(viii) All blank tests gave results of .000.
(b) For purposes of this section, "prima facie evidence" is
evidence of sufficient circumstances that would support a logical and
reasonable inference of the facts sought to be proved. In assessing
whether there is sufficient evidence of the foundational facts, the
court or administrative tribunal is to assume the truth of the
prosecution's or department's evidence and all reasonable inferences
from it in a light most favorable to the prosecution or department.
(c) Nothing in this section shall be deemed to prevent the subject
of the test from challenging the reliability or accuracy of the test,
the reliability or functioning of the instrument, or any maintenance
procedures. Such challenges, however, shall not preclude the
admissibility of the test once the prosecution or department has made
a prima facie showing of the requirements contained in (a) of this
subsection. Instead, such challenges may be considered by the trier of
fact in determining what weight to give to the test result.
(5) 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 or drug content may be performed only by a physician, a
registered nurse, ((or a qualified technician)) a licensed practical
nurse, a nursing assistant as defined in chapter 18.88A RCW, a
physician assistant as defined in chapter 18.71A RCW, a first responder
as defined in chapter 18.73 RCW, an emergency medical technician as
defined in chapter 18.73 RCW, a health care assistant as defined in
chapter 18.135 RCW, or any technician trained in withdrawing blood.
This limitation shall not apply to the taking of breath specimens.
(((5))) (6) 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 test
will be admissible if the person establishes the general acceptability
of the testing technique or method. 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))) (7) 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.