BILL REQ. #:  H-4187.1 

READ FIRST TIME 02/06/12.   

     AN ACT Relating to commercial vehicle regulations for texting while driving and flags on projecting loads; amending RCW 46.25.010, 46.61.668, and 46.37.140; and prescribing penalties.

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

Sec. 1   RCW 46.25.010 and 2011 c 227 s 1 are each amended to read as follows:
     The definitions set forth in this section apply throughout this chapter.
     (1) "Alcohol" means any substance containing any form of alcohol, including but not limited to ethanol, methanol, propanol, and isopropanol.
     (2) "Alcohol concentration" means:
     (a) The number of grams of alcohol per one hundred milliliters of blood; or
     (b) The number of grams of alcohol per two hundred ten liters of breath.
     (3) "Commercial driver's license" (CDL) means a license issued to an individual under chapter 46.20 RCW that has been endorsed in accordance with the requirements of this chapter to authorize the individual to drive a class of commercial motor vehicle.
     (4) The "commercial driver's license information system" (CDLIS) is the information system established pursuant to 49 U.S.C. Sec. 31309 to serve as a clearinghouse for locating information related to the licensing and identification of commercial motor vehicle drivers.
     (5) "Commercial driver's instruction permit" means a permit issued under RCW 46.25.060(5).
     (6) "Commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
     (a) Has a gross vehicle weight rating of 11,794 kilograms or more (26,001 pounds or more) inclusive of a towed unit with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds or more); or
     (b) Has a gross vehicle weight rating of 11,794 kilograms or more (26,001 pounds or more); or
     (c) Is designed to transport sixteen or more passengers, including the driver; or
     (d) Is of any size and is used in the transportation of hazardous materials as defined in this section; or
     (e) Is a school bus regardless of weight or size.
     (7) "Conviction" means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, entry into a deferred prosecution program under chapter 10.05 RCW, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.
     (8) "Disqualification" means a prohibition against driving a commercial motor vehicle.
     (9) "Drive" means to drive, operate, or be in physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic. For purposes of RCW 46.25.100, 46.25.110, and 46.25.120, "drive" includes operation or physical control of a motor vehicle anywhere in the state.
     (10) "Drugs" are those substances as defined by RCW 69.04.009, including, but not limited to, those substances defined by 49 C.F.R. Sec. 40.3.
     (11) "Employer" means any person, including the United States, a state, or a political subdivision of a state, who owns or leases a commercial motor vehicle, or assigns a person to drive a commercial motor vehicle.
     (12) "Gross vehicle weight rating" (GVWR) means the value specified by the manufacturer as the maximum loaded weight of a single vehicle. The GVWR of a combination or articulated vehicle, commonly referred to as the "gross combined weight rating" or GCWR, is the GVWR of the power unit plus the GVWR of the towed unit or units. If the GVWR of any unit cannot be determined, the actual gross weight will be used. If a vehicle with a GVWR of less than 11,794 kilograms (26,001 pounds or less) has been structurally modified to carry a heavier load, then the actual gross weight capacity of the modified vehicle, as determined by RCW 46.44.041 and 46.44.042, will be used as the GVWR.
     (13) "Hazardous materials" means any material that has been designated as hazardous under 49 U.S.C. Sec. 5103 and is required to be placarded under subpart F of 49 C.F.R. Part 172 or any quantity of a material listed as a select agent or toxin in 42 C.F.R. Part 73.
     (14) "Motor vehicle" means a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power used on highways, or any other vehicle required to be registered under the laws of this state, but does not include a vehicle, machine, tractor, trailer, or semitrailer operated exclusively on a rail.
     (15) "Out-of-service order" means a declaration by an authorized enforcement officer of a federal, state, Canadian, Mexican, or local jurisdiction that a driver, a commercial motor vehicle, or a motor carrier operation is out-of-service pursuant to 49 C.F.R. Secs. 386.72, 392.5, 395.13, 396.9, or compatible laws, or the North American uniform out-of-service criteria.
     (16) "Positive alcohol confirmation test" means an alcohol confirmation test that:
     (a) Has been conducted by a breath alcohol technician under 49 C.F.R. Part 40; and
     (b) Indicates an alcohol concentration of 0.04 or more.
     A report that a person has refused an alcohol test, under circumstances that constitute the refusal of an alcohol test under 49 C.F.R. Part 40, will be considered equivalent to a report of a positive alcohol confirmation test for the purposes of this chapter.
     (17) "School bus" means a commercial motor vehicle used to transport preprimary, primary, or secondary school students from home to school, from school to home, or to and from school-sponsored events. School bus does not include a bus used as a common carrier.
     (18) "Serious traffic violation" means:
     (a) Excessive speeding, defined as fifteen miles per hour or more in excess of the posted limit;
     (b) Reckless driving, as defined under state or local law;
     (c) Texting, defined as a violation of RCW 46.61.668(1)(b) or an equivalent administrative regulation or local law, ordinance, regulation, or resolution;
     (d) A violation of a state or local law relating to motor vehicle traffic control, other than a parking violation, arising in connection with an accident or collision resulting in death to any person;
     (((d))) (e) Driving a commercial motor vehicle without obtaining a commercial driver's license;
     (((e))) (f) Driving a commercial motor vehicle without a commercial driver's license in the driver's possession; however, any individual who provides proof to the court by the date the individual must appear in court or pay any fine for such a violation, that the individual held a valid CDL on the date the citation was issued, is not guilty of a "serious traffic ((offense)) violation";
     (((f))) (g) Driving a commercial motor vehicle without the proper class of commercial driver's license endorsement or endorsements for the specific vehicle group being operated or for the passenger or type of cargo being transported; and
     (((g))) (h) Any other violation of a state or local law relating to motor vehicle traffic control, other than a parking violation, that the department determines by rule to be serious.
     (19) "State" means a state of the United States and the District of Columbia.
     (20) "Substance abuse professional" means an alcohol and drug specialist meeting the credentials, knowledge, training, and continuing education requirements of 49 C.F.R. Sec. 40.281.
     (21) "Tank vehicle" means a vehicle that is designed to transport a liquid or gaseous material within a tank that is either permanently or temporarily attached to the vehicle or the chassis. Tank vehicles include, but are not limited to cargo tanks and portable tanks. However, this definition does not include portable tanks having a rated capacity under one thousand gallons.
     (22) "Type of driving" means one of the following:
     (a) "Nonexcepted interstate," which means the CDL holder or applicant operates or expects to operate in interstate commerce, is both subject to and meets the qualification requirements under 49 C.F.R. Part 391 as it existed on January 30, 2012, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section, and is required to obtain a medical examiner's certificate under 49 C.F.R. Sec. 391.45 as it existed on January 30, 2012, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section;
     (b) "Excepted interstate," which means the CDL holder or applicant operates or expects to operate in interstate commerce, but engages exclusively in transportation or operations excepted under 49 C.F.R. Secs. 390.3(f), 391.2, 391.68, or 398.3, as they existed on January 30, 2012, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section, from all or parts of the qualification requirements of 49 C.F.R. Part 391 as it existed on January 30, 2012, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section, and is therefore not required to obtain a medical examiner's certificate under 49 C.F.R. Sec. 391.45 as it existed on January 30, 2012, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section;
     (c) "Nonexcepted intrastate," which means the CDL holder or applicant operates only in intrastate commerce and is therefore subject to state driver qualification requirements; or
     (d) "Excepted intrastate," which means the CDL holder or applicant operates in intrastate commerce, but engages exclusively in transportation or operations excepted from all or parts of the state driver qualification requirements.
     (23) "United States" means the fifty states and the District of Columbia.
     (24) "Verified positive drug test" means a drug test result or validity testing result from a laboratory certified under the authority of the federal department of health and human services that:
     (a) Indicates a drug concentration at or above the cutoff concentration established under 49 C.F.R. Sec. 40.87; and
     (b) Has undergone review and final determination by a medical review officer.
     A report that a person has refused a drug test, under circumstances that constitute the refusal of a federal department of transportation drug test under 49 C.F.R. Part 40, will be considered equivalent to a report of a verified positive drug test for the purposes of this chapter.

Sec. 2   RCW 46.61.668 and 2010 c 223 s 4 are each amended to read as follows:
     (1)(a) Except as provided in subsection (2)(a) of this section, a person operating a moving noncommercial motor vehicle who, by means of an electronic wireless communications device, sends, reads, or writes a text message, is guilty of a traffic infraction.
     (b) Except as provided in subsection (2)(b) of this section, a person driving a commercial motor vehicle, as defined in RCW 46.25.010, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays, who, by means of an electronic wireless communications device, sends, reads, or writes a text message, is guilty of a traffic infraction. For purposes of this subsection, "driving" does not include operating a commercial motor vehicle with or without the motor running when the driver has moved the vehicle to the side of, or off, a highway and has stopped in a location where the vehicle can safely remain stationary.
     (c) A person does not send, read, or write a text message when he or she reads, selects, or enters a phone number or name in a wireless communications device for the purpose of making a phone call.
     (2)(a) Subsection (1)(a) of this section does not apply to a person operating:
     (((a))) (i) An authorized emergency vehicle;
     (((b))) (ii) A voice-operated global positioning or navigation system that is affixed to the vehicle and that allows the user to send or receive messages without diverting visual attention from the road or engaging the use of either hand; or
     (((c))) (iii) A moving motor vehicle while using an electronic wireless communications device to:
     (((i))) (A) Report illegal activity;
     (((ii))) (B) Summon medical or other emergency help;
     (((iii))) (C) Prevent injury to a person or property; or
     (((iv))) (D) Relay information that is time sensitive between a transit or for-hire operator and that operator's dispatcher, in which the device is permanently affixed to the vehicle.
     (b) Subsection (1)(b) of this section does not apply to a person operating a commercial motor vehicle when necessary to communicate with law enforcement officials or other emergency services.
     (3) Infractions under subsection (1)(a) of this section shall not become part of the driver's record under RCW 46.52.101 and 46.52.120. Additionally, a finding that a person has committed a traffic infraction under subsection (1)(a) of this section shall not be made available to insurance companies or employers.

Sec. 3   RCW 46.37.140 and 1977 ex.s. c 355 s 12 are each amended to read as follows:
     ((Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the times specified in RCW 46.37.020, two red lamps, visible from a distance of at least five hundred feet to the rear, two red reflectors visible at night from all distances within six hundred feet to one hundred feet to the rear when directly in front of lawful lower beams of headlamps, and located so as to indicate maximum width, and on each side one red lamp, visible from a distance of at least five hundred feet to the side, located so as to indicate maximum overhang. There shall be displayed at all other times)) (1) On any vehicle having a load ((which)) that extends more than four inches beyond its sides or more than four feet beyond its rear, there must be displayed red or orange fluorescent warning flags, not less than ((twelve)) eighteen inches square, marking the extremities of such loads((, at each point where a lamp would otherwise be required by this section, under RCW 46.37.020)).
     (2) Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of the vehicle, there must be displayed at the extreme rear end of the load at the times specified in RCW 46.37.020:
     (a) Two red lamps, visible from a distance of at least five hundred feet to the rear;
     (b) Two red reflectors, visible at night from all distances within six hundred feet to one hundred feet to the rear when directly in front of lawful lower beams of headlamps, and located so as to indicate maximum width; and
     (c) A red lamp on each side, visible from a distance of at least five hundred feet to the side, and located so as to indicate maximum overhang.