BILL REQ. #:  H-3835.1 

Read first time 01/11/2006.   Referred to Committee on Judiciary.

     AN ACT Relating to creating sentencing enhancements for the crimes of driving under the influence and physical control of a vehicle while under the influence; amending RCW 46.61.5055 and 46.61.5151; adding new sections to chapter 46.61 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 46.61 RCW to read as follows:
     (1) In addition to the penalties listed in RCW 46.61.5055, the court shall impose the additional sentencing enhancements in subsection (2) of this section when the offender, at the time he or she was arrested for a violation of RCW 46.61.502 or 46.61.504, also committed any of the following:
     (a) Driving without a license, RCW 46.20.005 or 46.20.015;
     (b) Failure to provide proof of motor vehicle insurance, RCW 46.30.020;
     (c) Driving without a required ignition interlock device, RCW 46.20.740;
     (d) Circumventing an ignition interlock device, RCW 46.20.750;
     (e) Reckless driving, RCW 46.61.500;
     (f) Exceeding the speed limit, RCW 46.61.400;
     (g) Speeding in a school zone, RCW 46.61.440;
     (h) Reckless endangerment of roadway workers, RCW 46.61.527;
     (i) Racing of vehicles on highways, RCW 46.61.530;
     (j) Failure to obey traffic control devices, RCW 46.61.050;
     (k) Open container violation, RCW 46.61.519;
     (l) Failure to stop, RCW 46.61.055, 46.61.065, 46.61.200, 46.61.340, 46.61.345, or 46.61.365;
     (m) Failure to yield, RCW 46.61.180, 46.61.185, 46.61.190, 46.61.202, 46.61.205, 46.61.210, 46.61.215, 46.61.220, 46.61.235, 46.61.245, or 46.61.261;
     (n) Improper lane change or travel, RCW 46.61.140;
     (o) Passing stopped school bus, RCW 46.61.370;
     (p) Impeding traffic, RCW 46.61.100, or 46.61.425;
     (q) Failure to signal or improper signal, RCW 46.61.305;
     (r) Operating with obstructed vision, RCW 46.61.615;
     (s) Operating with obscured windows, RCW 46.37.430;
     (t) Driving without lights, RCW 46.37.020;
     (u) Failure to wear safety belts, RCW 46.61.688; or
     (v) Following too close, RCW 46.61.145.
     (2) For each infraction or offense, the court shall impose the following sentencing enhancements:
     (a) Five days imprisonment. The additional imprisonment shall be served in total confinement, shall run consecutively to any other period of confinement, and may not be suspended or deferred. However, an offender may be granted extraordinary medical placement when authorized under RCW 46.61.5055(11). If the additional period of confinement required under this section increases the total time of confinement so that it exceeds the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.
     (b) Two hundred fifty dollar fine. The court may not suspend or defer this additional fine. If the additional fine required under this section increases the total fine so that it exceeds the statutory maximum for the offense, the portion of the fine representing the enhancement may not be reduced.
     (c) An order directing the department of licensing to suspend, revoke, or deny the offender's driver's license, permit, or privilege to drive for an additional thirty days. The suspension, revocation, or denial under this section may not be stayed or deferred, shall run consecutively to any other suspension, revocation, or denial imposed, and is not subject to the day-for-day credit under RCW 46.20.3101(4) and 46.61.5055(7).

NEW SECTION.  Sec. 2   A new section is added to chapter 46.61 RCW to read as follows:
     In a criminal case where the defendant has been convicted of a violation of RCW 46.61.502 or 46.61.504 and there has been a special allegation pleaded and proven beyond a reasonable doubt that the defendant also committed any of the offenses or infractions listed in section 1 of this act, the court shall make a finding of fact of the special allegation, or if a jury trial is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to the special allegation.

Sec. 3   RCW 46.61.5055 and 2004 c 95 s 13 are each amended to read as follows:
     (1) A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who has no prior offense within seven years shall be punished as follows:
     (a) In the case of a person whose alcohol concentration was less than 0.15, or for whom for reasons other than 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:
     (i) 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. In lieu of the mandatory minimum term of imprisonment required under this subsection (1)(a)(i), the court may order not less than fifteen days of electronic home monitoring. The offender shall pay the cost of electronic home monitoring. The county or municipality in which the penalty is being imposed shall determine the cost. The court may also require the offender's electronic home monitoring device to include an alcohol detection breathalyzer, and the court may restrict the amount of alcohol the offender may consume during the time the offender is on electronic home monitoring; and
     (ii) 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; or
     (b) In the case of a person whose alcohol concentration was at least 0.15, or for whom by reason 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:
     (i) By imprisonment for not less than two days nor more than one year. Two consecutive days 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. In lieu of the mandatory minimum term of imprisonment required under this subsection (1)(b)(i), the court may order not less than thirty days of electronic home monitoring. The offender shall pay the cost of electronic home monitoring. The county or municipality in which the penalty is being imposed shall determine the cost. The court may also require the offender's electronic home monitoring device to include an alcohol detection breathalyzer, and the court may restrict the amount of alcohol the offender may consume during the time the offender is on electronic home monitoring; 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.
     (2) A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who has one prior offense within seven years shall be punished as follows:
     (a) In the case of a person whose alcohol concentration was less than 0.15, or for whom for reasons other than 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:
     (i) By imprisonment for not less than thirty days nor more than one year and sixty days of electronic home monitoring. The offender shall pay for the cost of the electronic monitoring. The county or municipality where the penalty is being imposed shall determine the cost. The court may also require the offender's electronic home monitoring device include an alcohol detection breathalyzer, and may restrict the amount of alcohol the offender may consume during the time the offender is on electronic home monitoring. Thirty days of imprisonment and sixty days of electronic home monitoring 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; or
     (b) In the case of a person whose alcohol concentration was at least 0.15, or for whom by reason 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:
     (i) By imprisonment for not less than forty-five days nor more than one year and ninety days of electronic home monitoring. The offender shall pay for the cost of the electronic monitoring. The county or municipality where the penalty is being imposed shall determine the cost. The court may also require the offender's electronic home monitoring device include an alcohol detection breathalyzer, and may restrict the amount of alcohol the offender may consume during the time the offender is on electronic home monitoring. Forty-five days of imprisonment and ninety days of electronic home monitoring 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 seven hundred fifty dollars nor more than five thousand dollars. Seven hundred fifty dollars of the fine may not be suspended or deferred unless the court finds the offender to be indigent.
     (3) A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who has two or more prior offenses within seven years shall be punished as follows:
     (a) In the case of a person whose alcohol concentration was less than 0.15, or for whom for reasons other than 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:
     (i) By imprisonment for not less than ninety days nor more than one year and one hundred twenty days of electronic home monitoring. The offender shall pay for the cost of the electronic monitoring. The county or municipality where the penalty is being imposed shall determine the cost. The court may also require the offender's electronic home monitoring device include an alcohol detection breathalyzer, and may restrict the amount of alcohol the offender may consume during the time the offender is on electronic home monitoring. Ninety days of imprisonment and one hundred twenty days of electronic home monitoring 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 one thousand dollars nor more than five thousand dollars. One thousand dollars of the fine may not be suspended or deferred unless the court finds the offender to be indigent; or
     (b) In the case of a person whose alcohol concentration was at least 0.15, or for whom by reason 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:
     (i) By imprisonment for not less than one hundred twenty days nor more than one year and one hundred fifty days of electronic home monitoring. The offender shall pay for the cost of the electronic monitoring. The county or municipality where the penalty is being imposed shall determine the cost. The court may also require the offender's electronic home monitoring device include an alcohol detection breathalyzer, and may restrict the amount of alcohol the offender may consume during the time the offender is on electronic home monitoring. One hundred twenty days of imprisonment and one hundred fifty days of electronic home monitoring 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 one thousand five hundred dollars nor more than five thousand dollars. One thousand five hundred dollars of the fine may not be suspended or deferred unless the court finds the offender to be indigent.
     (4) If a person who is convicted of a violation of RCW 46.61.502 or 46.61.504 committed the offense while a passenger under the age of sixteen was in the vehicle, the court shall:
     (a) In any case in which the installation and use of an interlock or other device is not mandatory under RCW 46.20.720 or other law, order the use of such a device for not less than sixty days following the restoration of the person's license, permit, or nonresident driving privileges; and
     (b) In any case in which the installation and use of such a device is otherwise mandatory, order the use of such a device for an additional sixty days.
     (5) In exercising its discretion in setting penalties within the limits allowed by this section, the court shall particularly consider the following:
     (a) Whether the person's driving at the time of the offense was responsible for injury or damage to another or another's property; and
     (b) Whether at the time of the offense the person was driving or in physical control of a vehicle with one or more passengers.
     (6) An offender punishable under this section is subject to the alcohol assessment and treatment provisions of RCW 46.61.5056.
     (7) The license, permit, or nonresident privilege of a person convicted of driving or being in physical control of a motor vehicle while under the influence of intoxicating liquor or drugs must:
     (a) If the person's alcohol concentration was less than 0.15, or if for reasons other than the person's refusal to take a test offered under RCW 46.20.308 there is no test result indicating the person's alcohol concentration:
     (i) Where there has been no prior offense within seven years, be suspended or denied by the department for ninety days;
     (ii) Where there has been one prior offense within seven years, be revoked or denied by the department for two years; or
     (iii) Where there have been two or more prior offenses within seven years, be revoked or denied by the department for three years;
     (b) If the person's alcohol concentration was at least 0.15:
     (i) Where there has been no prior offense within seven years, be revoked or denied by the department for one year;
     (ii) Where there has been one prior offense within seven years, be revoked or denied by the department for nine hundred days; or
     (iii) Where there have been two or more prior offenses within seven years, be revoked or denied by the department for four years; or
     (c) If by reason of the person's refusal to take a test offered under RCW 46.20.308, there is no test result indicating the person's alcohol concentration:
     (i) Where there have been no prior offenses within seven years, be revoked or denied by the department for two years;
     (ii) Where there has been one prior offense within seven years, be revoked or denied by the department for three years; or
     (iii) Where there have been two or more previous offenses within seven years, be revoked or denied by the department for four years.
     The department shall grant credit on a day-for-day basis for any portion of a suspension, revocation, or denial already served under this subsection for a suspension, revocation, or denial imposed under RCW 46.20.3101 arising out of the same incident.
     For purposes of this subsection (7), the department shall refer to the driver's record maintained under RCW 46.52.120 when determining the existence of prior offenses.
     (8) After expiration of any period of suspension, revocation, or denial of the offender's license, permit, or privilege to drive required by this section and section 1 of this act, the department shall place the offender's driving privilege in probationary status pursuant to RCW 46.20.355.
     (9)(a) In addition to any nonsuspendable and nondeferrable jail sentence required by this section and section 1 of this act, 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 five years. The court shall impose conditions of probation that include: (i) Not driving a motor vehicle within this state without a valid license to drive and proof of financial responsibility for the future; (ii) not driving a motor vehicle within this state while having an alcohol concentration of 0.08 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, installation of an ignition interlock device on the probationer's motor vehicle, 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), (ii), or (iii) of this subsection, the court shall order the convicted person 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 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.
     (10) A court may waive the electronic home monitoring requirements of this chapter when:
     (a) The offender does not have a dwelling, telephone service, or any other necessity to operate an electronic home monitoring system;
     (b) The offender does not reside in the state of Washington; or
     (c) The court determines that there is reason to believe that the offender would violate the conditions of the electronic home monitoring penalty.
     Whenever the mandatory minimum term of electronic home monitoring is waived, the court shall state in writing the reason for granting the waiver and the facts upon which the waiver is based, and shall impose an alternative sentence with similar punitive consequences. The alternative sentence may include, but is not limited to, additional jail time, work crew, or work camp.
     Whenever the combination of jail time and electronic home monitoring or alternative sentence would exceed three hundred sixty-five days, the offender shall serve the jail portion of the sentence first, and the electronic home monitoring or alternative portion of the sentence shall be reduced so that the combination does not exceed three hundred sixty-five days.
     (11) An offender serving a sentence under this section, whether or not a mandatory minimum term has expired, may be granted an extraordinary medical placement by the jail administrator subject to the standards and limitations set forth in RCW 9.94A.728(4).
     (12) For purposes of this section:
     (a) A "prior offense" means any of the following:
     (i) A conviction for a violation of RCW 46.61.502 or an equivalent local ordinance;
     (ii) A conviction for a violation of RCW 46.61.504 or an equivalent local ordinance;
     (iii) A conviction for a violation of RCW 46.61.520 committed while under the influence of intoxicating liquor or any drug;
     (iv) A conviction for a violation of RCW 46.61.522 committed while under the influence of intoxicating liquor or any drug;
     (v) A conviction for a violation of RCW 46.61.5249, 46.61.500, or 9A.36.050 or an equivalent local ordinance, if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.502 or 46.61.504, or an equivalent local ordinance, or of RCW 46.61.520 or 46.61.522;
     (vi) An out-of-state conviction for a violation that would have been a violation of (a)(i), (ii), (iii), (iv), or (v) of this subsection if committed in this state;
     (vii) A deferred prosecution under chapter 10.05 RCW granted in a prosecution for a violation of RCW 46.61.502, 46.61.504, or an equivalent local ordinance; or
     (viii) A deferred prosecution under chapter 10.05 RCW granted in a prosecution for a violation of RCW 46.61.5249, or an equivalent local ordinance, if the charge under which the deferred prosecution was granted was originally filed as a violation of RCW 46.61.502 or 46.61.504, or an equivalent local ordinance, or of RCW 46.61.520 or 46.61.522; and
     (b) "Within seven years" means that the arrest for a prior offense occurred within seven years of the arrest for the current offense.

Sec. 4   RCW 46.61.5151 and 1995 c 332 s 15 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 46.61.5055 in nonconsecutive or intermittent time periods. However, any mandatory minimum sentence under RCW 46.61.5055 and sentencing enhancement under section 1 of this act shall be served consecutively unless suspended or deferred as otherwise provided by law.