BILL REQ. #: H-0643.6
| State of Washington | 63rd Legislature | 2013 Regular Session |
Read first time 01/29/13. Referred to Committee on Public Safety.
AN ACT Relating to impaired driving; amending RCW 2.28.175, 3.66.068, 3.66.067, 3.50.320, 3.50.330, 35.20.255, 9.94A.525, 10.31.100, 43.43.395, 9.94A.533, 46.20.720, 46.20.270, 9.94A.603, 46.25.090, 46.25.110, and 46.25.120; reenacting and amending RCW 46.61.5055 and 46.20.308; adding a new section to chapter 9.94A RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 2.28.175 and 2012 c 183 s 1 are each amended to read
as follows:
(1) Counties and municipalities may establish and operate DUI
courts. Municipalities may also enter into cooperative agreements with
counties that have DUI courts to provide DUI court services.
(2) For the purposes of this section, "DUI court" means a court
that has special calendars or dockets designed to achieve a reduction
in recidivism of impaired driving among nonviolent, alcohol abusing
offenders, whether adult or juvenile, by increasing their likelihood
for successful rehabilitation through early, continuous, and intense
judicially supervised treatment; mandatory periodic testing for alcohol
use and, if applicable, drug use; and the use of appropriate sanctions
and other rehabilitation services.
(3)(a) Any jurisdiction that seeks a state appropriation to fund a
DUI court program must first:
(i) Exhaust all federal funding that is available to support the
operations of its DUI court and associated services; and
(ii) Match, on a dollar-for-dollar basis, state moneys allocated
for DUI court programs with local cash or in-kind resources. Moneys
allocated by the state must be used to supplement, not supplant, other
federal, state, and local funds for DUI court operations and associated
services. However, until June 30, 2014, no match is required for state
moneys expended for the administrative and overhead costs associated
with the operation of a DUI court established as of January 1, 2011.
(b) Any jurisdiction that establishes a DUI court pursuant to this
section shall establish minimum requirements for the participation of
offenders in the program. The DUI court may adopt local requirements
that are more stringent than the minimum. The minimum requirements
are:
(i) The offender would benefit from alcohol treatment;
(ii) The offender has not previously been convicted of a serious
violent offense or sex offense as defined in RCW 9.94A.030, vehicular
homicide under RCW 46.61.520, vehicular assault under RCW 46.61.522, or
an equivalent out-of-state offense; and
(iii) Without regard to whether proof of any of these elements is
required to convict, the offender is not currently charged with or
convicted of an offense:
(A) That is a sex offense;
(B) That is a serious violent offense;
(C) That is vehicular homicide or vehicular assault;
(D) During which the defendant used a firearm; or
(E) During which the defendant caused substantial or great bodily
harm or death to another person.
Sec. 2 RCW 3.66.068 and 2010 c 274 s 405 are each amended to read
as follows:
(1) A court has continuing jurisdiction and authority to suspend
the execution of all or any part of its sentence upon stated terms,
including installment payment of fines for a period not to exceed:
(a) Five years after imposition of sentence for a defendant
sentenced for a domestic violence offense or under RCW 46.61.5055; and
(b) Two years after imposition of sentence for all other
offenses((, the)).
(2)(a) Except as provided in (b) of this subsection, a court has
continuing jurisdiction and authority to ((suspend or)) defer the
execution of all or any part of its sentence upon stated terms,
including installment payment of fines for a period not to exceed:
(i) Five years after imposition of sentence for a defendant
sentenced for a domestic violence offense; and
(ii) Two years after imposition of sentence for all other offenses.
(b) A court shall not defer sentence for an offense sentenced under
RCW 46.61.5055.
(3) A defendant who has been sentenced, or whose sentence has been
deferred, and who then fails to appear for any hearing to address the
defendant's compliance with the terms of probation when ordered to do
so by the court, shall have the term of probation tolled until such
time as the defendant makes his or her presence known to the court on
the record.
(4) However, the court's jurisdiction period in this section does
not apply to the enforcement of orders issued under RCW 46.20.720.
(5) For the purposes of this section, "domestic violence offense"
means a crime listed in RCW 10.99.020 that is not a felony offense.
Sec. 3 RCW 3.66.067 and 2001 c 94 s 1 are each amended to read as
follows:
After a conviction, the court may impose sentence by suspending all
or a portion of the defendant's sentence or by deferring the sentence
of the defendant and may place the defendant on probation for a period
of no longer than two years and prescribe the conditions thereof. A
defendant who has been sentenced, or whose sentence has been deferred,
and who then fails to appear for any hearing to address the defendant's
compliance with the terms of probation when ordered to do so by the
court, shall have the term of probation tolled until such time as the
defendant makes his or her presence known to the court on the record.
During the time of the deferral, the court may, for good cause shown,
permit a defendant to withdraw the plea of guilty and to enter a plea
of not guilty, and the court may dismiss the charges. A court shall
not defer sentence for an offense sentenced under RCW 46.61.5055.
Sec. 4 RCW 3.50.320 and 2001 c 94 s 4 are each amended to read as
follows:
After a conviction, the court may impose sentence by suspending all
or a portion of the defendant's sentence or by deferring the sentence
of the defendant and may place the defendant on probation for a period
of no longer than two years and prescribe the conditions thereof. A
defendant who has been sentenced, or whose sentence has been deferred,
and who then fails to appear for any hearing to address the defendant's
compliance with the terms of probation when ordered to do so by the
court, shall have the term of probation tolled until such time as the
defendant makes his or her presence known to the court on the record.
During the time of the deferral, the court may, for good cause shown,
permit a defendant to withdraw the plea of guilty, permit the defendant
to enter a plea of not guilty, and dismiss the charges. A court shall
not defer sentence for an offense sentenced under RCW 46.61.5055.
Sec. 5 RCW 3.50.330 and 2010 c 274 s 406 are each amended to read
as follows:
(1) A court has continuing jurisdiction and authority to suspend
the execution of all or any part of its sentence upon stated terms,
including installment payment of fines for a period not to exceed:
(a) Five years after imposition of sentence for a defendant
sentenced for a domestic violence offense or under RCW 46.61.5055; and
(b) Two years after imposition of sentence for all other
offenses((, the)).
(2)(a) Except as provided in (b) of this subsection, a court shall
have continuing jurisdiction and authority to ((suspend or)) defer the
execution of all or any part of the sentence upon stated terms,
including installment payment of fines for a period not to exceed:
(i) Five years after imposition of sentence for a defendant
sentenced for a domestic violence offense; and
(ii) Two years after imposition of sentence for all other offenses.
(b) A court shall not defer sentence for an offense sentenced under
RCW 46.61.5055.
(3) A defendant who has been sentenced, or whose sentence has been
deferred, and who then fails to appear for any hearing to address the
defendant's compliance with the terms of probation when ordered to do
so by the court, shall have the term of probation tolled until such
time as the defendant makes his or her presence known to the court on
the record.
(4) However, the court's jurisdiction period in this section does
not apply to the enforcement of orders issued under RCW 46.20.720.
(5) Any time before entering an order terminating probation, the
court may modify or revoke its order suspending or deferring the
imposition or execution of the sentence.
(6) For the purposes of this section, "domestic violence offense"
means a crime listed in RCW 10.99.020 that is not a felony offense.
Sec. 6 RCW 35.20.255 and 2010 c 274 s 407 are each amended to
read as follows:
(1) Except as provided in subsection (3) of this section, judges of
the municipal court, in their discretion, shall have the power in all
criminal proceedings within their jurisdiction including violations of
city ordinances, to defer imposition of any sentence, suspend all or
part of any sentence including installment payment of fines, fix the
terms of any such deferral or suspension, and provide for such
probation as in their opinion is reasonable and necessary under the
circumstances of the case, but in no case shall it extend for more than
five years from the date of conviction for a defendant to be sentenced
for a domestic violence offense or under RCW 46.61.5055 and two years
from the date of conviction for all other offenses. A defendant who
has been sentenced, or whose sentence has been deferred, and who then
fails to appear for any hearing to address the defendant's compliance
with the terms of probation when ordered to do so by the court, shall
have the term of probation tolled until such time as the defendant
makes his or her presence known to the court on the record. However,
the jurisdiction period in this section does not apply to the
enforcement of orders issued under RCW 46.20.720. Any time before
entering an order terminating probation, the court may modify or revoke
its order suspending or deferring the imposition or execution of the
sentence. For the purposes of this subsection, "domestic violence
offense" means a crime listed in RCW 10.99.020 that is not a felony
offense.
(2)(a) If a defendant whose sentence has been deferred requests
permission to travel or transfer to another state, the director of
probation services or a designee thereof shall determine whether such
request is subject to RCW 9.94A.745, the interstate compact for adult
offender supervision. If such request is subject to the compact, the
director or designee shall:
(i) Notify the department of corrections of the defendant's
request;
(ii) Provide the department of corrections with the supporting
documentation it requests for processing an application for transfer;
(iii) Notify the defendant of the fee due to the department of
corrections for processing an application under the compact;
(iv) Cease supervision of the defendant while another state
supervises the defendant pursuant to the compact;
(v) Resume supervision if the defendant returns to this state
before the period of deferral expires.
(b) The defendant shall receive credit for time served while being
supervised by another state.
(c) If the probationer is returned to the state at the request of
the receiving state under rules of the interstate compact for adult
offender supervision, the department of corrections is responsible for
the cost of returning the probationer.
(d) The state of Washington, the department of corrections and its
employees, and any city and its employees are not liable for civil
damages resulting from any act or omission authorized or required under
this section unless the act or omission constitutes gross negligence.
(3) Judges of the municipal court shall not defer sentence for an
offense sentenced under RCW 46.61.5055.
Sec. 7 RCW 9.94A.525 and 2011 c 166 s 3 are each amended to read
as follows:
The offender score is measured on the horizontal axis of the
sentencing grid. The offender score rules are as follows:
The offender score is the sum of points accrued under this section
rounded down to the nearest whole number.
(1) A prior conviction is a conviction which exists before the date
of sentencing for the offense for which the offender score is being
computed. Convictions entered or sentenced on the same date as the
conviction for which the offender score is being computed shall be
deemed "other current offenses" within the meaning of RCW 9.94A.589.
(2)(a) Class A and sex prior felony convictions shall always be
included in the offender score.
(b) Class B prior felony convictions other than sex offenses shall
not be included in the offender score, if since the last date of
release from confinement (including full-time residential treatment)
pursuant to a felony conviction, if any, or entry of judgment and
sentence, the offender had spent ten consecutive years in the community
without committing any crime that subsequently results in a conviction.
(c) Except as provided in (e) of this subsection, class C prior
felony convictions other than sex offenses shall not be included in the
offender score if, since the last date of release from confinement
(including full-time residential treatment) pursuant to a felony
conviction, if any, or entry of judgment and sentence, the offender had
spent five consecutive years in the community without committing any
crime that subsequently results in a conviction.
(d) Except as provided in (e) of this subsection, serious traffic
convictions shall not be included in the offender score if, since the
last date of release from confinement (including full-time residential
treatment) pursuant to a ((felony)) conviction, if any, or entry of
judgment and sentence, the offender spent five years in the community
without committing any crime that subsequently results in a conviction.
(e) If the present conviction is felony driving while under the
influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or
felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug (RCW 46.61.504(6)), ((prior convictions
of)) one point must be counted for each felony driving while under the
influence of intoxicating liquor or any drug conviction, felony
physical control of a vehicle while under the influence of intoxicating
liquor or any drug conviction, ((and)) serious traffic offense((s shall
be included in the offender score if: (i) The prior convictions were
committed within five years since the last date of release from
confinement (including full-time residential treatment) or entry of
judgment and sentence; or (ii) the)) conviction, and prior
conviction((s)) that would be considered "prior offenses within ten
years" as defined in RCW 46.61.5055. If the present conviction is
felony driving while under the influence of intoxicating liquor or any
drug (RCW 46.61.502(6)) or felony physical control of a vehicle while
under the influence of intoxicating liquor or any drug (RCW
46.61.504(6)), prior convictions of felony driving while under the
influence of intoxicating liquor or any drug and prior convictions of
felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug shall always be included in the
offender score.
(f) Prior convictions for a repetitive domestic violence offense,
as defined in RCW 9.94A.030, shall not be included in the offender
score if, since the last date of release from confinement or entry of
judgment and sentence, the offender had spent ten consecutive years in
the community without committing any crime that subsequently results in
a conviction.
(g) This subsection applies to both adult and juvenile prior
convictions.
(3) Out-of-state convictions for offenses shall be classified
according to the comparable offense definitions and sentences provided
by Washington law. Federal convictions for offenses shall be
classified according to the comparable offense definitions and
sentences provided by Washington law. If there is no clearly
comparable offense under Washington law or the offense is one that is
usually considered subject to exclusive federal jurisdiction, the
offense shall be scored as a class C felony equivalent if it was a
felony under the relevant federal statute.
(4) Score prior convictions for felony anticipatory offenses
(attempts, criminal solicitations, and criminal conspiracies) the same
as if they were convictions for completed offenses.
(5)(a) In the case of multiple prior convictions, for the purpose
of computing the offender score, count all convictions separately,
except:
(i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to
encompass the same criminal conduct, shall be counted as one offense,
the offense that yields the highest offender score. The current
sentencing court shall determine with respect to other prior adult
offenses for which sentences were served concurrently or prior juvenile
offenses for which sentences were served consecutively, whether those
offenses shall be counted as one offense or as separate offenses using
the "same criminal conduct" analysis found in RCW 9.94A.589(1)(a), and
if the court finds that they shall be counted as one offense, then the
offense that yields the highest offender score shall be used. The
current sentencing court may presume that such other prior offenses
were not the same criminal conduct from sentences imposed on separate
dates, or in separate counties or jurisdictions, or in separate
complaints, indictments, or informations;
(ii) In the case of multiple prior convictions for offenses
committed before July 1, 1986, for the purpose of computing the
offender score, count all adult convictions served concurrently as one
offense, and count all juvenile convictions entered on the same date as
one offense. Use the conviction for the offense that yields the
highest offender score.
(b) As used in this subsection (5), "served concurrently" means
that: (i) The latter sentence was imposed with specific reference to
the former; (ii) the concurrent relationship of the sentences was
judicially imposed; and (iii) the concurrent timing of the sentences
was not the result of a probation or parole revocation on the former
offense.
(6) If the present conviction is one of the anticipatory offenses
of criminal attempt, solicitation, or conspiracy, count each prior
conviction as if the present conviction were for a completed offense.
When these convictions are used as criminal history, score them the
same as a completed crime.
(7) If the present conviction is for a nonviolent offense and not
covered by subsection (11), (12), or (13) of this section, count one
point for each adult prior felony conviction and one point for each
juvenile prior violent felony conviction and 1/2 point for each
juvenile prior nonviolent felony conviction.
(8) If the present conviction is for a violent offense and not
covered in subsection (9), (10), (11), (12), or (13) of this section,
count two points for each prior adult and juvenile violent felony
conviction, one point for each prior adult nonviolent felony
conviction, and 1/2 point for each prior juvenile nonviolent felony
conviction.
(9) If the present conviction is for a serious violent offense,
count three points for prior adult and juvenile convictions for crimes
in this category, two points for each prior adult and juvenile violent
conviction (not already counted), one point for each prior adult
nonviolent felony conviction, and 1/2 point for each prior juvenile
nonviolent felony conviction.
(10) If the present conviction is for Burglary 1, count prior
convictions as in subsection (8) of this section; however count two
points for each prior adult Burglary 2 or residential burglary
conviction, and one point for each prior juvenile Burglary 2 or
residential burglary conviction.
(11) If the present conviction is for a felony traffic offense
count two points for each adult or juvenile prior conviction for
Vehicular Homicide or Vehicular Assault; for each felony offense count
one point for each adult and 1/2 point for each juvenile prior
conviction; for each serious traffic offense, other than those used for
an enhancement pursuant to RCW 46.61.520(2), count one point for each
adult and 1/2 point for each juvenile prior conviction; count one point
for each adult and 1/2 point for each juvenile prior conviction for
operation of a vessel while under the influence of intoxicating liquor
or any drug.
(12) If the present conviction is for homicide by watercraft or
assault by watercraft count two points for each adult or juvenile prior
conviction for homicide by watercraft or assault by watercraft; for
each felony offense count one point for each adult and 1/2 point for
each juvenile prior conviction; count one point for each adult and 1/2
point for each juvenile prior conviction for driving under the
influence of intoxicating liquor or any drug, actual physical control
of a motor vehicle while under the influence of intoxicating liquor or
any drug, or operation of a vessel while under the influence of
intoxicating liquor or any drug.
(13) If the present conviction is for manufacture of
methamphetamine count three points for each adult prior manufacture of
methamphetamine conviction and two points for each juvenile manufacture
of methamphetamine offense. If the present conviction is for a drug
offense and the offender has a criminal history that includes a sex
offense or serious violent offense, count three points for each adult
prior felony drug offense conviction and two points for each juvenile
drug offense. All other adult and juvenile felonies are scored as in
subsection (8) of this section if the current drug offense is violent,
or as in subsection (7) of this section if the current drug offense is
nonviolent.
(14) If the present conviction is for Escape from Community
Custody, RCW 72.09.310, count only prior escape convictions in the
offender score. Count adult prior escape convictions as one point and
juvenile prior escape convictions as 1/2 point.
(15) If the present conviction is for Escape 1, RCW 9A.76.110, or
Escape 2, RCW 9A.76.120, count adult prior convictions as one point and
juvenile prior convictions as 1/2 point.
(16) If the present conviction is for Burglary 2 or residential
burglary, count priors as in subsection (7) of this section; however,
count two points for each adult and juvenile prior Burglary 1
conviction, two points for each adult prior Burglary 2 or residential
burglary conviction, and one point for each juvenile prior Burglary 2
or residential burglary conviction.
(17) If the present conviction is for a sex offense, count priors
as in subsections (7) through (11) and (13) through (16) of this
section; however count three points for each adult and juvenile prior
sex offense conviction.
(18) If the present conviction is for failure to register as a sex
offender under RCW 9A.44.130 or 9A.44.132, count priors as in
subsections (7) through (11) and (13) through (16) of this section;
however count three points for each adult and juvenile prior sex
offense conviction, excluding prior convictions for failure to register
as a sex offender under RCW 9A.44.130 or 9A.44.132, which shall count
as one point.
(19) If the present conviction is for an offense committed while
the offender was under community custody, add one point. For purposes
of this subsection, community custody includes community placement or
postrelease supervision, as defined in chapter 9.94B RCW.
(20) If the present conviction is for Theft of a Motor Vehicle,
Possession of a Stolen Vehicle, Taking a Motor Vehicle Without
Permission 1, or Taking a Motor Vehicle Without Permission 2, count
priors as in subsections (7) through (18) of this section; however
count one point for prior convictions of Vehicle Prowling 2, and three
points for each adult and juvenile prior Theft 1 (of a motor vehicle),
Theft 2 (of a motor vehicle), Possession of Stolen Property 1 (of a
motor vehicle), Possession of Stolen Property 2 (of a motor vehicle),
Theft of a Motor Vehicle, Possession of a Stolen Vehicle, Taking a
Motor Vehicle Without Permission 1, or Taking a Motor Vehicle Without
Permission 2 conviction.
(21) If the present conviction is for a felony domestic violence
offense where domestic violence as defined in RCW 9.94A.030 was plead
and proven, count priors as in subsections (7) through (20) of this
section; however, count points as follows:
(a) Count two points for each adult prior conviction where domestic
violence as defined in RCW 9.94A.030 was plead and proven after August
1, 2011, for the following offenses: A violation of a no-contact order
that is a felony offense, a violation of a protection order that is a
felony offense, a felony domestic violence harassment offense, a felony
domestic violence stalking offense, a domestic violence Burglary 1
offense, a domestic violence Kidnapping 1 offense, a domestic violence
Kidnapping 2 offense, a domestic violence unlawful imprisonment
offense, a domestic violence Robbery 1 offense, a domestic violence
Robbery 2 offense, a domestic violence Assault 1 offense, a domestic
violence Assault 2 offense, a domestic violence Assault 3 offense, a
domestic violence Arson 1 offense, or a domestic violence Arson 2
offense;
(b) Count one point for each second and subsequent juvenile
conviction where domestic violence as defined in RCW 9.94A.030 was
plead and proven after August 1, 2011, for the offenses listed in (a)
of this subsection; and
(c) Count one point for each adult prior conviction for a
repetitive domestic violence offense as defined in RCW 9.94A.030, where
domestic violence as defined in RCW 9.94A.030, was plead and proven
after August 1, 2011.
(22) The fact that a prior conviction was not included in an
offender's offender score or criminal history at a previous sentencing
shall have no bearing on whether it is included in the criminal history
or offender score for the current offense. Prior convictions that were
not counted in the offender score or included in criminal history under
repealed or previous versions of the sentencing reform act shall be
included in criminal history and shall count in the offender score if
the current version of the sentencing reform act requires including or
counting those convictions. Prior convictions that were not included
in criminal history or in the offender score shall be included upon any
resentencing to ensure imposition of an accurate sentence.
Sec. 8 RCW 10.31.100 and 2010 c 274 s 201 are each 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, or involving criminal trespass under RCW 9A.52.070
or 9A.52.080, 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 26.44.063, or chapter 7.90, 10.99, 26.09, 26.10, 26.26,
26.50, or 74.34 RCW restraining the person and the person has violated
the terms of the order restraining the person from acts or threats of
violence, or restraining the person from going onto the grounds of or
entering a residence, workplace, school, or day care, or prohibiting
the person from knowingly coming within, or knowingly remaining within,
a specified distance of a location or, in the case of an order issued
under RCW 26.44.063, imposing any other restrictions or conditions upon
the person; or
(b) A foreign protection order, as defined in RCW 26.52.010, has
been issued of which the person under restraint has knowledge and the
person under restraint has violated a provision of the foreign
protection order prohibiting the person under restraint from contacting
or communicating with another person, or excluding the person under
restraint from a residence, workplace, school, or day care, or
prohibiting the person from knowingly coming within, or knowingly
remaining within, a specified distance of a location, or a violation of
any provision for which the foreign protection order specifically
indicates that a violation will be a crime; or
(c) The person is sixteen years or older and within the preceding
four hours has assaulted a family or household member as defined in RCW
10.99.020 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 family or household members
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 of each person involved, including whether the conduct was
part of an ongoing pattern of abuse.
(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;
(c) RCW 46.61.500 or 46.61.530, relating to reckless driving or
racing of vehicles;
(d) RCW 46.61.502 or 46.61.504, relating to persons under the
influence of intoxicating liquor or drugs;
(e) RCW 46.61.503 or 46.25.110, relating to persons having alcohol
in their system;
(f) RCW 46.20.342, relating to driving a motor vehicle while
operator's license is suspended or revoked;
(((f))) (g) RCW 46.61.5249, 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 79A.60.040
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 subsection (2) or (8) of this section if
the police officer acts in good faith and without malice.
Sec. 9 RCW 46.61.5055 and 2012 c 183 s 12, 2012 c 42 s 2, and
2012 c 28 s 1 are each reenacted and amended to read as follows:
(1) No prior offenses in seven years. Except as provided in RCW
46.61.502(6) or 46.61.504(6), 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) Penalty for alcohol concentration less than 0.15. 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 three
hundred sixty-four days. 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 or other separate alcohol monitoring
device, 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) Penalty for alcohol concentration at least 0.15. 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 three
hundred sixty-four days. ((Two consecutive days)) 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. 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 or other
separate alcohol monitoring device, 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) One prior offense in seven years. Except as provided in RCW
46.61.502(6) or 46.61.504(6), 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) Penalty for alcohol concentration less than 0.15. 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
three hundred sixty-four days and sixty days of electronic home
monitoring. In lieu of the mandatory minimum term of sixty days
electronic home monitoring, the court may order at least an additional
four days in jail. 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 or other separate alcohol monitoring device, 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) Penalty for alcohol concentration at least 0.15. 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
three hundred sixty-four days and ninety days of electronic home
monitoring. In lieu of the mandatory minimum term of ninety days
electronic home monitoring, the court may order at least an additional
six days in jail. 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 or other separate alcohol monitoring device, 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) Two to three prior offenses in seven years. Except as provided
in RCW 46.61.502(6) or 46.61.504(6), a person who is convicted of a
violation of RCW 46.61.502 or 46.61.504 and who has two or three prior
offenses within seven years shall be punished as follows:
(a) Penalty for alcohol concentration less than 0.15. 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
three hundred sixty-four days and one hundred twenty days of electronic
home monitoring. In lieu of the mandatory minimum term of one hundred
twenty days of electronic home monitoring, the court may order at least
an additional eight days in jail. 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 or other separate alcohol monitoring
device, 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) Penalty for alcohol concentration at least 0.15. 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 three hundred sixty-four days and one hundred fifty days of
electronic home monitoring. In lieu of the mandatory minimum term of
one hundred fifty days of electronic home monitoring, the court may
order at least an additional ten days in jail. 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 or other separate alcohol
monitoring device, 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) Four or more prior offenses in ten years. A person who is
convicted of a violation of RCW 46.61.502 or 46.61.504 shall be
punished under chapter 9.94A RCW if:
(a) The person has four or more prior offenses within ten years; or
(b) The person has ever previously been convicted of:
(i) A violation of RCW 46.61.520 committed while under the
influence of intoxicating liquor or any drug;
(ii) A violation of RCW 46.61.522 committed while under the
influence of intoxicating liquor or any drug;
(iii) An out-of-state offense comparable to the offense specified
in (b)(i) or (ii) of this subsection; or
(iv) A violation of RCW 46.61.502(6) or 46.61.504(6).
(5)(a) Mandated alcohol monitoring device. The court shall require
any person convicted of a violation of RCW 46.61.502 or 46.61.504 or an
equivalent local ordinance to comply with the rules and requirements of
the department regarding the installation and use of a functioning
ignition interlock device installed on all motor vehicles operated by
the person.
(b) If the court orders that a person refrain from consuming any
alcohol, the court may order the person to submit to alcohol monitoring
through an alcohol detection breathalyzer device, transdermal sensor
device, or other technology designed to detect alcohol in a person's
system. The person shall pay for the cost of the monitoring, unless
the court specifies that the cost of monitoring will be paid with funds
that are available from an alternative source identified by the court.
The county or municipality where the penalty is being imposed shall
determine the cost.
(6) Penalty for having a minor passenger in vehicle. In addition
to any other penalty provided by law, 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)) following must occur:
(a) ((Order)) The court shall require the use of an ignition
interlock or other device for an additional six months;
(b) In any case in which the person has no prior offenses within
seven years, and except as provided in RCW 46.61.502(6) or
46.61.504(6), order ((a)) an additional penalty by ((a)) an additional
fine of not less than one thousand dollars and not 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;
(c) In any case in which the person has one prior offense within
seven years, and except as provided in RCW 46.61.502(6) or
46.61.504(6), order ((a)) an additional penalty by ((a)) an additional
fine of not less than two thousand dollars and not 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;
(d) In any case in which the person has two or three prior offenses
within seven years, and except as provided in RCW 46.61.502(6) or
46.61.504(6), order ((a)) an additional penalty by ((a)) an additional
fine of not less than three thousand dollars and not more than ten
thousand dollars. One thousand dollars of the fine may not be
suspended or deferred unless the court finds the offender to be
indigent.
(7) Other items courts must consider while setting penalties. 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.
(8) Treatment and information school. An offender punishable under
this section is subject to the alcohol assessment and treatment
provisions of RCW 46.61.5056.
(9) Driver's license privileges of the defendant. 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) Penalty for alcohol concentration less than 0.15. 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) Penalty for alcohol concentration at least 0.15. 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.
Upon its own motion or upon motion by a person, a court may find,
on the record, that notice to the department under RCW 46.20.270 has
been delayed for three years or more as a result of a clerical or court
error. If so, the court may order that the person's license, permit,
or nonresident privilege shall not be revoked, suspended, or denied for
that offense. The court shall send notice of the finding and order to
the department and to the person. Upon receipt of the notice from the
court, the department shall not revoke, suspend, or deny the license,
permit, or nonresident privilege of the person for that offense.
For purposes of this subsection (9), the department shall refer to
the driver's record maintained under RCW 46.52.120 when determining the
existence of prior offenses.
(10) Probation of driving privilege. After expiration of any
period of suspension, revocation, or denial of the offender's license,
permit, or privilege to drive required by this section, the department
shall place the offender's driving privilege in probationary status
pursuant to RCW 46.20.355.
(11) Conditions of probation. (a) In addition to any
nonsuspendable and nondeferrable jail sentence required by this
section, whenever the court imposes up to three hundred sixty-four days
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 both a valid license to drive and
proof of liability insurance or other financial responsibility for the
future pursuant to RCW 46.30.020; (ii) not driving a motor vehicle
within this state while having an alcohol concentration of 0.08 or more
or any measurable amount of drug concentration within two hours after
driving; and (iii) not refusing to submit to a test of his or her
breath or blood to determine alcohol or drug 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 or
drug. 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.
(12) Waiver of electronic home monitoring. 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.
However, if a court determines that an alcohol monitoring device
utilizing wireless reporting technology is reasonably available, the
court may require the person to obtain such a device during the period
of required electronic home monitoring;
(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, use of an
ignition interlock device, 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-four 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-four days.
(13) Extraordinary medical placement. 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(3).
(14) Definitions. For purposes of this section and RCW 46.61.502
and 46.61.504:
(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, or a conviction
for a violation of RCW 46.61.520 committed in a reckless manner or with
the disregard for the safety of others if the conviction is the result
of a charge that was originally filed as 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, or a conviction
for a violation of RCW 46.61.522 committed in a reckless manner or with
the disregard for the safety of others if the conviction is the result
of a charge that was originally filed as 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;
(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; ((or))
(ix) A deferred prosecution granted in another state for a
violation of driving or having physical control of a vehicle while
under the influence of intoxicating liquor or any drug if the out-of-state deferred prosecution is equivalent to the deferred prosecution
under chapter 10.05 RCW, including a requirement that the defendant
participate in a chemical dependency treatment program;
(x) If a deferred prosecution is revoked based on a subsequent
conviction for an offense listed in this subsection (14)(a), the
subsequent conviction shall not be treated as a prior offense of the
revoked deferred prosecution for the purposes of sentencing; or
(xi) A deferred sentence imposed in a prosecution for a violation
of RCW 46.61.5249, 46.61.500, or 9A.36.050, or an equivalent local
ordinance, if the charge under which the deferred sentence was imposed
was originally filed as a violation of RCW 46.61.502 or 46.61.504, or
an equivalent local ordinance, or a violation of RCW 46.61.520 or
46.61.522;
(b) "Within seven years" means that the arrest for a prior offense
occurred within seven years before or after the arrest for the current
offense; and
(c) "Within ten years" means that the arrest for a prior offense
occurred within ten years before or after the arrest for the current
offense.
Sec. 10 RCW 43.43.395 and 2012 c 183 s 16 are each amended to
read as follows:
(1) The state patrol shall by rule provide standards for the
certification, installation, repair, maintenance, monitoring,
inspection, and removal of ignition interlock devices, as defined under
RCW 46.04.215, and equipment as outlined under this section, and may
inspect the records and equipment of manufacturers and vendors during
regular business hours for compliance with statutes and rules and may
suspend or revoke certification for any noncompliance. The state
patrol may only inspect ignition interlock devices in the vehicles of
customers for proper installation and functioning when installation is
being done at the vendors' place of business.
(2)(a) When a certified service provider or individual installer of
ignition interlock devices is found to be out of compliance, the
installation privileges of that certified service provider or
individual installer may be suspended or revoked until the certified
service provider or individual installer comes into compliance. During
any suspension or revocation period, the certified service provider or
individual installer is responsible for notifying affected customers of
any changes in their service agreement.
(b) A certified service provider or individual installer whose
certification is suspended or revoked for noncompliance has a right to
an administrative hearing under chapter 34.05 RCW to contest the
suspension or revocation, or both. For the administrative hearing, the
procedure and rules of evidence are as specified in chapter 34.05 RCW,
except as otherwise provided in this chapter. Any request for an
administrative hearing must be made in writing and must be received by
the state patrol within twenty days after the receipt of the notice of
suspension or revocation.
(3)(a) An ignition interlock device must employ fuel cell
technology. For the purposes of this subsection, "fuel cell
technology" consists of the following electrochemical method: An
electrolyte designed to oxidize the alcohol and release electrons to be
collected by an active electrode; a current flow is generated within
the electrode proportional to the amount of alcohol oxidized on the
fuel cell surface; and the electrical current is measured and reported
as breath alcohol concentration. Fuel cell technology is highly
specific for alcohols.
(b) When reasonably available in the area, as determined by the
state patrol, an ignition interlock device must employ technology
capable of taking a photo identification of the user giving the breath
sample and recording on the photo the time the breath sample was given.
(c) To be certified, an ignition interlock device must:
(i) Meet or exceed the minimum test standards according to rules
adopted by the state patrol. Only a notarized statement from a
laboratory that is certified by the international organization of
standardization and is capable of performing the tests specified will
be accepted as proof of meeting or exceeding the standards. The
notarized statement must include the name and signature of the person
in charge of the tests under the ((following statement:
"Two samples of (model name) , manufactured by (manufacturer)
were tested by (laboratory) certified by the Internal Organization of
Standardization. They do meet or exceed all specifications listed in
the Federal Register, Volume 71, Number 31 (57 FR 11772), Breath
Alcohol Ignition Interlock Devices (BAIID), NHTSA 2005-23470."
(ii) Be maintained in accordance with the rules and standards
adopted by the state patrol.
Sec. 11 RCW 9.94A.533 and 2012 c 42 s 3 are each amended to read
as follows:
(1) The provisions of this section apply to the standard sentence
ranges determined by RCW 9.94A.510 or 9.94A.517.
(2) For persons convicted of the anticipatory offenses of criminal
attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the
standard sentence range is determined by locating the sentencing grid
sentence range defined by the appropriate offender score and the
seriousness level of the completed crime, and multiplying the range by
seventy-five percent.
(3) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a firearm as defined in RCW
9.41.010 and the offender is being sentenced for one of the crimes
listed in this subsection as eligible for any firearm enhancements
based on the classification of the completed felony crime. If the
offender is being sentenced for more than one offense, the firearm
enhancement or enhancements must be added to the total period of
confinement for all offenses, regardless of which underlying offense is
subject to a firearm enhancement. If the offender or an accomplice was
armed with a firearm as defined in RCW 9.41.010 and the offender is
being sentenced for an anticipatory offense under chapter 9A.28 RCW to
commit one of the crimes listed in this subsection as eligible for any
firearm enhancements, the following additional times shall be added to
the standard sentence range determined under subsection (2) of this
section based on the felony crime of conviction as classified under RCW
9A.28.020:
(a) Five years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both, and not covered under (f) of this subsection;
(b) Three years for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both, and
not covered under (f) of this subsection;
(c) Eighteen months for any felony defined under any law as a class
C felony or with a statutory maximum sentence of five years, or both,
and not covered under (f) of this subsection;
(d) If the offender is being sentenced for any firearm enhancements
under (a), (b), and/or (c) of this subsection and the offender has
previously been sentenced for any deadly weapon enhancements after July
23, 1995, under (a), (b), and/or (c) of this subsection or subsection
(4)(a), (b), and/or (c) of this section, or both, all firearm
enhancements under this subsection shall be twice the amount of the
enhancement listed;
(e) Notwithstanding any other provision of law, all firearm
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements, for
all offenses sentenced under this chapter. However, whether or not a
mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(3);
(f) The firearm enhancements in this section shall apply to all
felony crimes except the following: Possession of a machine gun,
possessing a stolen firearm, drive-by shooting, theft of a firearm,
unlawful possession of a firearm in the first and second degree, and
use of a machine gun in a felony;
(g) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a firearm enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(4) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a deadly weapon other than a
firearm as defined in RCW 9.41.010 and the offender is being sentenced
for one of the crimes listed in this subsection as eligible for any
deadly weapon enhancements based on the classification of the completed
felony crime. If the offender is being sentenced for more than one
offense, the deadly weapon enhancement or enhancements must be added to
the total period of confinement for all offenses, regardless of which
underlying offense is subject to a deadly weapon enhancement. If the
offender or an accomplice was armed with a deadly weapon other than a
firearm as defined in RCW 9.41.010 and the offender is being sentenced
for an anticipatory offense under chapter 9A.28 RCW to commit one of
the crimes listed in this subsection as eligible for any deadly weapon
enhancements, the following additional times shall be added to the
standard sentence range determined under subsection (2) of this section
based on the felony crime of conviction as classified under RCW
9A.28.020:
(a) Two years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both, and not covered under (f) of this subsection;
(b) One year for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both, and
not covered under (f) of this subsection;
(c) Six months for any felony defined under any law as a class C
felony or with a statutory maximum sentence of five years, or both, and
not covered under (f) of this subsection;
(d) If the offender is being sentenced under (a), (b), and/or (c)
of this subsection for any deadly weapon enhancements and the offender
has previously been sentenced for any deadly weapon enhancements after
July 23, 1995, under (a), (b), and/or (c) of this subsection or
subsection (3)(a), (b), and/or (c) of this section, or both, all deadly
weapon enhancements under this subsection shall be twice the amount of
the enhancement listed;
(e) Notwithstanding any other provision of law, all deadly weapon
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements, for
all offenses sentenced under this chapter. However, whether or not a
mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(3);
(f) The deadly weapon enhancements in this section shall apply to
all felony crimes except the following: Possession of a machine gun,
possessing a stolen firearm, drive-by shooting, theft of a firearm,
unlawful possession of a firearm in the first and second degree, and
use of a machine gun in a felony;
(g) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a deadly weapon enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(5) The following additional times shall be added to the standard
sentence range if the offender or an accomplice committed the offense
while in a county jail or state correctional facility and the offender
is being sentenced for one of the crimes listed in this subsection. If
the offender or an accomplice committed one of the crimes listed in
this subsection while in a county jail or state correctional facility,
and the offender is being sentenced for an anticipatory offense under
chapter 9A.28 RCW to commit one of the crimes listed in this
subsection, the following additional times shall be added to the
standard sentence range determined under subsection (2) of this
section:
(a) Eighteen months for offenses committed under RCW 69.50.401(2)
(a) or (b) or 69.50.410;
(b) Fifteen months for offenses committed under RCW 69.50.401(2)
(c), (d), or (e);
(c) Twelve months for offenses committed under RCW 69.50.4013.
For the purposes of this subsection, all of the real property of a
state correctional facility or county jail shall be deemed to be part
of that facility or county jail.
(6) An additional twenty-four months shall be added to the standard
sentence range for any ranked offense involving a violation of chapter
69.50 RCW if the offense was also a violation of RCW 69.50.435 or
9.94A.827. All enhancements under this subsection shall run
consecutively to all other sentencing provisions, for all offenses
sentenced under this chapter.
(7) An additional two years shall be added to the standard sentence
range for vehicular homicide committed while under the influence of
intoxicating liquor or any drug as defined by RCW 46.61.502 for each
prior offense as defined in RCW 46.61.5055. All enhancements under
this subsection shall be mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions.
(8)(a) The following additional times shall be added to the
standard sentence range for felony crimes committed on or after July 1,
2006, if the offense was committed with sexual motivation, as that term
is defined in RCW 9.94A.030. If the offender is being sentenced for
more than one offense, the sexual motivation enhancement must be added
to the total period of total confinement for all offenses, regardless
of which underlying offense is subject to a sexual motivation
enhancement. If the offender committed the offense with sexual
motivation and the offender is being sentenced for an anticipatory
offense under chapter 9A.28 RCW, the following additional times shall
be added to the standard sentence range determined under subsection (2)
of this section based on the felony crime of conviction as classified
under RCW 9A.28.020:
(i) Two years for any felony defined under the law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both;
(ii) Eighteen months for any felony defined under any law as a
class B felony or with a statutory maximum sentence of ten years, or
both;
(iii) One year for any felony defined under any law as a class C
felony or with a statutory maximum sentence of five years, or both;
(iv) If the offender is being sentenced for any sexual motivation
enhancements under (i), (ii), and/or (iii) of this subsection and the
offender has previously been sentenced for any sexual motivation
enhancements on or after July 1, 2006, under (i), (ii), and/or (iii) of
this subsection, all sexual motivation enhancements under this
subsection shall be twice the amount of the enhancement listed;
(b) Notwithstanding any other provision of law, all sexual
motivation enhancements under this subsection are mandatory, shall be
served in total confinement, and shall run consecutively to all other
sentencing provisions, including other sexual motivation enhancements,
for all offenses sentenced under this chapter. However, whether or not
a mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(3);
(c) The sexual motivation enhancements in this subsection apply to
all felony crimes;
(d) If the standard sentence range under this subsection exceeds
the statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a sexual motivation
enhancement increases the sentence so that it would exceed the
statutory maximum for the offense, the portion of the sentence
representing the enhancement may not be reduced;
(e) The portion of the total confinement sentence which the
offender must serve under this subsection shall be calculated before
any earned early release time is credited to the offender;
(f) Nothing in this subsection prevents a sentencing court from
imposing a sentence outside the standard sentence range pursuant to RCW
9.94A.535.
(9) An additional one-year enhancement shall be added to the
standard sentence range for the felony crimes of RCW 9A.44.073,
9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, or 9A.44.089 committed on
or after July 22, 2007, if the offender engaged, agreed, or offered to
engage the victim in the sexual conduct in return for a fee. If the
offender is being sentenced for more than one offense, the one-year
enhancement must be added to the total period of total confinement for
all offenses, regardless of which underlying offense is subject to the
enhancement. If the offender is being sentenced for an anticipatory
offense for the felony crimes of RCW 9A.44.073, 9A.44.076, 9A.44.079,
9A.44.083, 9A.44.086, or 9A.44.089, and the offender attempted,
solicited another, or conspired to engage, agree, or offer to engage
the victim in the sexual conduct in return for a fee, an additional
one-year enhancement shall be added to the standard sentence range
determined under subsection (2) of this section. For purposes of this
subsection, "sexual conduct" means sexual intercourse or sexual
contact, both as defined in chapter 9A.44 RCW.
(10)(a) For a person age eighteen or older convicted of any
criminal street gang-related felony offense for which the person
compensated, threatened, or solicited a minor in order to involve the
minor in the commission of the felony offense, the standard sentence
range is determined by locating the sentencing grid sentence range
defined by the appropriate offender score and the seriousness level of
the completed crime, and multiplying the range by one hundred twenty-five percent. If the standard sentence range under this subsection
exceeds the statutory maximum sentence for the offense, the statutory
maximum sentence is the presumptive sentence unless the offender is a
persistent offender.
(b) This subsection does not apply to any criminal street gang-related felony offense for which involving a minor in the commission of
the felony offense is an element of the offense.
(c) The increased penalty specified in (a) of this subsection is
unavailable in the event that the prosecution gives notice that it will
seek an exceptional sentence based on an aggravating factor under RCW
9.94A.535.
(11) An additional twelve months and one day shall be added to the
standard sentence range for a conviction of attempting to elude a
police vehicle as defined by RCW 46.61.024, if the conviction included
a finding by special allegation of endangering one or more persons
under RCW 9.94A.834. The enhancement under this subsection shall be
mandatory, shall be served in total confinement, and shall run
consecutively with all other sentencing provisions.
(12) An additional twelve months shall be added to the standard
sentence range for an offense that is also a violation of RCW
9.94A.831.
(13) An additional twelve months shall be added to the standard
sentence range for vehicular homicide committed while under the
influence of intoxicating liquor or any drug as defined by RCW
46.61.520 or for vehicular assault committed while under the influence
of intoxicating liquor or any drug as defined by RCW 46.61.522, or for
any felony driving under the influence (RCW 46.61.502(6)) or felony
physical control under the influence (RCW 46.61.504(6)) for each child
passenger under the age of sixteen who is an occupant in the
defendant's vehicle. These enhancements shall be mandatory, shall be
served in total confinement, and shall run consecutively to all other
sentencing provisions. If the addition of a minor child enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(14) An additional twelve months shall be added to the standard
sentence range for an offense that is also a violation of section 17 of
this act. The enhancement under this subsection shall be mandatory,
shall be served in total confinement, and shall run consecutively with
all other sentencing provisions.
Sec. 12 RCW 46.20.720 and 2012 c 183 s 9 are each amended to read
as follows:
(1) The court may order that after a period of suspension,
revocation, or denial of driving privileges, and for up to as long as
the court has jurisdiction, any person convicted of any offense
involving the use, consumption, or possession of alcohol while
operating a motor vehicle may drive only a motor vehicle equipped with
a functioning ignition interlock. The court shall establish a specific
calibration setting at which the interlock will prevent the vehicle
from being started. The court shall also establish the period of time
for which interlock use will be required.
(2) Under RCW 46.61.5055 and subject to the exceptions listed in
that statute, the court shall order any person convicted of a violation
of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to
comply with the rules and requirements of the department regarding the
installation and use of a functioning ignition interlock device
installed on all motor vehicles operated by the person. The court
shall order any person participating in a deferred prosecution program
under RCW 10.05.020 for a violation of RCW 46.61.502 or 46.61.504 or an
equivalent local ordinance to have a functioning ignition interlock
device installed on all motor vehicles operated by the person.
(3) The department shall require that, after any applicable period
of suspension, revocation, or denial of driving privileges, a person
may drive only a motor vehicle equipped with a functioning ignition
interlock device if the person is convicted of a violation of RCW
46.61.502 or 46.61.504 or an equivalent local or out-of-state statute
or ordinance. The department shall require that a person may drive
only a motor vehicle equipped with a functioning ignition interlock
device if the person is convicted of a violation of RCW 46.61.5249 or
46.61.500 and is required under RCW 46.61.5249(4) or 46.61.500(3) (a)
or (b) to install an ignition interlock device on all vehicles operated
by the person.
The department may waive the requirement for the use of such a
device if it concludes that such devices are not reasonably available
in the local area. The installation of an ignition interlock device is
not necessary on vehicles owned, leased, or rented by a person's
employer and on those vehicles whose care and/or maintenance is the
temporary responsibility of the employer, and driven at the direction
of a person's employer as a requirement of employment during working
hours. The person must provide the department with a declaration
pursuant to RCW 9A.72.085 from his or her employer stating that the
person's employment requires the person to operate a vehicle owned by
the employer or other persons during working hours. However, when the
employer's vehicle is assigned exclusively to the restricted driver and
used solely for commuting to and from employment, the employer
exemption does not apply.
The ignition interlock device shall be calibrated to prevent the
motor vehicle from being started when the breath sample provided has an
alcohol concentration of 0.025 or more. Subject to the provisions of
subsections (4) and (5) of this section, the period of time of the
restriction will be no less than:
(a) For a person who has not previously been restricted under this
section, a period of one year;
(b) For a person who has previously been restricted under (a) of
this subsection, a period of five years;
(c) For a person who has previously been restricted under (b) of
this subsection, a period of ten years.
(4) A restriction imposed under subsection (3) of this section
shall remain in effect until the department receives a declaration from
the person's ignition interlock device vendor, in a form provided or
approved by the department, certifying that there have been none of the
following incidents in the four consecutive months prior to the date of
release:
(a) ((An)) Any attempt to start the vehicle with a breath alcohol
concentration of 0.04 or more unless a subsequent test performed within
ten minutes registers a breath alcohol concentration lower than 0.04
and the digital image confirms the same person provided both samples;
(b) Failure to take ((or pass)) any ((required retest)) random test
unless a review of the digital image confirms that the vehicle was not
occupied by the driver at the time of the missed test; ((or))
(c) Failure to pass any random retest with a breath alcohol
concentration of 0.025 or lower unless a subsequent test performed
within ten minutes registers a breath alcohol concentration lower than
0.025, and the digital image confirms the same person provided both
samples; or
(d) Failure of the person to appear at the ignition interlock
device vendor when required for maintenance, repair, calibration,
monitoring, inspection, or replacement of the device.
(5) For a person required to install an ignition interlock device
pursuant to RCW 46.61.5249(4) or 46.61.500(3), the period of time of
the restriction shall be for six months and shall be subject to
subsection (4) of this section.
(6) In addition to any other costs associated with the use of an
ignition interlock device imposed on the person restricted under this
section, the person shall pay an additional fee of twenty dollars per
month. Payments must be made directly to the ignition interlock
company. The company shall remit the additional twenty dollar fee to
the department to be deposited into the ignition interlock device
revolving account.
Sec. 13 RCW 46.20.308 and 2013 c 3 s 31 (Initiative Measure No.
502), 2012 c 183 s 7, and 2012 c 80 s 12 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, THC 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 or
THC 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 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(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, in substantially
the following language, that:
(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's refusal to
take the test may be used in a criminal trial; and
(c) 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:
(i) The driver is age twenty-one or over and the test indicates
either that the alcohol concentration of the driver's breath or blood
is 0.08 or more or that the THC concentration of the driver's blood is
5.00 or more; or
(ii) The driver is under age twenty-one and the test indicates
either that the alcohol concentration of the driver's breath or blood
is 0.02 or more or that the THC concentration of the driver's blood is
above 0.00; or
(iii) The driver is under age twenty-one and the driver is in
violation of RCW 46.61.502 or 46.61.504; and
(d) If the driver's license, permit, or privilege to drive is
suspended, revoked, or denied the driver may be eligible to immediately
apply for an ignition interlock driver's license.
(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 felony driving under the influence of
intoxicating liquor or drugs under RCW 46.61.502(6), felony physical
control of a motor vehicle while under the influence of intoxicating
liquor or any drug under RCW 46.61.504(6), 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, or the THC concentration of the person's blood is 5.00
or more, if the person is age twenty-one or over, or that the alcohol
concentration of the person's breath or blood is 0.02 or more, or the
THC concentration of the person's blood is above 0.00, 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 and that the person waives the right to a hearing if he or she
receives an ignition interlock driver's license;
(c) ((Mark the person's Washington state driver's license or permit
to drive, if any, in a manner authorized by the department;)) 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
(d)
(((e))) (d) 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 or THC 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, or the THC concentration of the person's blood was 5.00 or
more, if the person is age twenty-one or over, or that the alcohol
concentration of the person's breath or blood was 0.02 or more, or the
THC concentration of the person's blood was above 0.00, 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))) (d) 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 twenty days after the notice has been given,
request in writing a formal hearing before the department. The person
shall pay a fee of three hundred seventy-five dollars as part of the
request. If the request is mailed, it must be postmarked within twenty
days after receipt of the notification. Upon timely receipt of such a
request for a formal hearing, including receipt of the required three
hundred seventy-five dollar fee, the department shall afford the person
an opportunity for a hearing. The department may waive the required
three hundred seventy-five 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 of 0.02 or more, or THC
in his or her system in a concentration above 0.00, 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, or the THC concentration of
the person's blood was 5.00 or more, if the person was age twenty-one
or over at the time of the arrest, or that the alcohol concentration of
the person's breath or blood was 0.02 or more, or the THC concentration
of the person's blood was above 0.00, 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 of 0.02 or more, or THC in his or her system in a
concentration above 0.00, 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)(a) 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, or notifies the department of
licensing of the intent to seek such a deferred prosecution, then the
license suspension or revocation shall be stayed pending entry of the
deferred prosecution. The stay shall not be longer than one hundred
fifty days after the date charges are filed, or two years after the
date of the arrest, whichever time period is shorter. 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.
(b) 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.
(c) The provisions of (b) of this subsection relating to a stay of
a suspension, revocation, or denial and the cancellation of any
suspension, revocation, or denial do not apply to the suspension,
revocation, denial, or disqualification of a person's commercial
driver's license or privilege to operate a commercial motor vehicle.
(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. 14 RCW 46.20.270 and 2010 c 249 s 11 are each amended to
read as follows:
(1) ((Whenever any person is convicted of any offense for which
this title makes mandatory the withholding of the driving privilege of
such person by the department, the court in which such conviction is
had shall forthwith mark the person's Washington state driver's license
or permit to drive, if any, in a manner authorized by the department.
A valid driver's license or permit to drive marked under this
subsection shall remain in effect until the person's driving privilege
is withheld by the department pursuant to notice given under RCW
46.20.245, unless the license or permit expires or otherwise becomes
invalid prior to the effective date of this action. Perfection of
notice of appeal shall stay the execution of sentence including the
withholding of the driving privilege.)) 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 this title which occur on
federal installations within this state, shall immediately forward to
the department a forfeiture of bail or collateral deposited to secure
the defendant's appearance in court, a payment of a fine, penalty, or
court cost, a plea of guilty or nolo contendere 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.
(2)
(((3))) (2) Every state agency or municipality having jurisdiction
over offenses committed under this chapter, or under any other act of
this state or municipal ordinance adopted by a state or 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, parking, or civil penalties issued under RCW
46.63.160 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 or one or more civil penalties issued
under RCW 46.63.160 have been committed and indicating the nature of
the defendant's failure to act. Such violations or infractions 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))) (3) For the purposes of this title and except as defined in
RCW 46.25.010, "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 this title 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 or court cost, a plea of guilty or nolo
contendere, 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 not including entry into a
deferred prosecution agreement under chapter 10.05 RCW.
(4) Perfection of a notice of appeal shall stay the execution of
sentence including the withholding of the driving privilege.
(5) For the purposes of this title, "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.
Sec. 15 RCW 9.94A.603 and 2006 c 73 s 4 are each amended to read
as follows:
(1) When sentencing an offender convicted of a violation of RCW
46.61.502(6) or 46.61.504(6), the court, in addition to imposing the
provisions of this chapter, shall order the offender to undergo alcohol
or chemical dependency treatment services during incarceration. The
offender shall be liable for the cost of treatment unless the court
finds the offender indigent and no third-party insurance coverage is
available.
(2) The provisions under RCW 46.61.5055 (((8))) (9) and (((9)))
(10) regarding the suspension, revocation, or denial of the offender's
license, permit, or nonresident privilege to drive shall apply to an
offender convicted of a violation of RCW 46.61.502(6) or 46.61.504(6).
(3) The provisions under RCW 46.20.720 and 46.61.5055(5) regarding
ignition interlock devices shall apply to an offender convicted of a
violation of RCW 46.61.502(6) or 46.61.504(6).
Sec. 16 RCW 46.25.090 and 2011 c 227 s 4 are each amended to read
as follows:
(1) A person is disqualified from driving a commercial motor
vehicle for a period of not less than one year if a report has been
received by the department pursuant to RCW 46.20.308 or 46.25.120, or
if the person has been convicted of a first violation, within this or
any other jurisdiction, of:
(a) Driving a motor vehicle under the influence of alcohol or any
drug;
(b) Driving a commercial motor vehicle while the alcohol
concentration in the person's system is 0.04 or more, or a THC
concentration above 0.00, or driving a noncommercial motor vehicle
while the alcohol concentration in the person's system is 0.08 or more,
or is 0.02 or more if the person is under age twenty-one, as determined
by any testing methods approved by law in this state or any other state
or jurisdiction;
(c) Leaving the scene of an accident involving a motor vehicle
driven by the person;
(d) Using a motor vehicle in the commission of a felony;
(e) Refusing to submit to a test or tests to determine the driver's
alcohol concentration or the presence of any drug while driving a motor
vehicle;
(f) Driving a commercial motor vehicle when, as a result of prior
violations committed while operating a commercial motor vehicle, the
driver's commercial driver's license is revoked, suspended, or
canceled, or the driver is disqualified from operating a commercial
motor vehicle;
(g) Causing a fatality through the negligent operation of a
commercial motor vehicle, including but not limited to the crimes of
vehicular homicide and negligent homicide.
If any of the violations set forth in this subsection occurred
while transporting hazardous material, the person is disqualified for
a period of not less than three years.
(2) A person is disqualified for life if it has been determined
that the person has committed or has been convicted of two or more
violations of any of the offenses specified in subsection (1) of this
section, or any combination of those offenses, arising from two or more
separate incidents.
(3) The department may adopt rules, in accordance with federal
regulations, establishing guidelines, including conditions, under which
a disqualification for life under subsection (2) of this section may be
reduced to a period of not less than ten years.
(4) A person is disqualified from driving a commercial motor
vehicle for life who uses a motor vehicle in the commission of a felony
involving the manufacture, distribution, or dispensing of a controlled
substance, as defined by chapter 69.50 RCW, or possession with intent
to manufacture, distribute, or dispense a controlled substance, as
defined by chapter 69.50 RCW.
(5)(a) A person is disqualified from driving a commercial motor
vehicle for a period of:
(i) Not less than sixty days if:
(A) Convicted of or found to have committed a second serious
traffic violation while driving a commercial motor vehicle; or
(B) Convicted of reckless driving, where there has been a prior
serious traffic violation; or
(ii) Not less than one hundred twenty days if:
(A) Convicted of or found to have committed a third or subsequent
serious traffic violation while driving a commercial motor vehicle; or
(B) Convicted of reckless driving, where there has been two or more
prior serious traffic violations.
(b) The disqualification period under (a)(ii) of this subsection
must be in addition to any other previous period of disqualification.
(c) For purposes of determining prior serious traffic violations
under this subsection, each conviction of or finding that a driver has
committed a serious traffic violation while driving a commercial motor
vehicle or noncommercial motor vehicle, arising from a separate
incident occurring within a three-year period, must be counted.
(6) A person is disqualified from driving a commercial motor
vehicle for a period of:
(a) Not less than one hundred eighty days nor more than one year if
convicted of or found to have committed a first violation of an out-of-service order while driving a commercial vehicle;
(b) Not less than two years nor more than five years if, during a
ten-year period, the person is convicted of or is found to have
committed two violations of out-of-service orders while driving a
commercial motor vehicle in separate incidents;
(c) Not less than three years nor more than five years if, during
a ten-year period, the person is convicted of or is found to have
committed three or more violations of out-of-service orders while
driving commercial motor vehicles in separate incidents;
(d) Not less than one hundred eighty days nor more than two years
if the person is convicted of or is found to have committed a first
violation of an out-of-service order while transporting hazardous
materials, or while operating motor vehicles designed to transport
sixteen or more passengers, including the driver. A person is
disqualified for a period of not less than three years nor more than
five years if, during a ten-year period, the person is convicted of or
is found to have committed subsequent violations of out-of-service
orders, in separate incidents, while transporting hazardous materials,
or while operating motor vehicles designed to transport sixteen or more
passengers, including the driver.
(7) A person is disqualified from driving a commercial motor
vehicle if a report has been received by the department under RCW
46.25.125 that the person has received a verified positive drug test or
positive alcohol confirmation test as part of the testing program
conducted under 49 C.F.R. 40. A disqualification under this subsection
remains in effect until the person undergoes a drug and alcohol
assessment by a substance abuse professional meeting the requirements
of 49 C.F.R. 40, and the person presents evidence of satisfactory
participation in or successful completion of a drug or alcohol
treatment and/or education program as recommended by the substance
abuse professional, and until the person has met the requirements of
RCW 46.25.100. The substance abuse professional shall forward a
diagnostic evaluation and treatment recommendation to the department of
licensing for use in determining the person's eligibility for driving
a commercial motor vehicle. Persons who are disqualified under this
subsection more than twice in a five-year period are disqualified for
life.
(8)(a) A person is disqualified from driving a commercial motor
vehicle for the period of time specified in (b) of this subsection if
he or she is convicted of or is found to have committed one of the
following six offenses at a railroad-highway grade crossing while
operating a commercial motor vehicle in violation of a federal, state,
or local law or regulation:
(i) For drivers who are not required to always stop, failing to
slow down and check that the tracks are clear of an approaching train;
(ii) For drivers who are not required to always stop, failing to
stop before reaching the crossing, if the tracks are not clear;
(iii) For drivers who are always required to stop, failing to stop
before driving onto the crossing;
(iv) For all drivers, failing to have sufficient space to drive
completely through the crossing without stopping;
(v) For all drivers, failing to obey a traffic control device or
the directions of an enforcement officer at the crossing;
(vi) For all drivers, failing to negotiate a crossing because of
insufficient undercarriage clearance.
(b) A person is disqualified from driving a commercial motor
vehicle for a period of:
(i) Not less than sixty days if the driver is convicted of or is
found to have committed a first violation of a railroad-highway grade
crossing violation;
(ii) Not less than one hundred twenty days if the driver is
convicted of or is found to have committed a second railroad-highway
grade crossing violation in separate incidents within a three-year
period;
(iii) Not less than one year if the driver is convicted of or is
found to have committed a third or subsequent railroad-highway grade
crossing violation in separate incidents within a three-year period.
(9) A person is disqualified from driving a commercial motor
vehicle for not more than one year if a report has been received by the
department from the federal motor carrier safety administration that
the person's driving has been determined to constitute an imminent
hazard as defined by 49 C.F.R. 383.5. A person who is simultaneously
disqualified from driving a commercial motor vehicle under this
subsection and under other provisions of this chapter, or under 49
C.F.R. 383.52, shall serve those disqualification periods concurrently.
(10) Within ten days after suspending, revoking, or canceling a
commercial driver's license or disqualifying a driver from operating a
commercial motor vehicle, the department shall update its records to
reflect that action.
NEW SECTION. Sec. 17 A new section is added to chapter 9.94A RCW
to read as follows:
In a criminal case where:
(1) The person has been convicted of driving while under the
influence of intoxicating liquor or any drug, under RCW 46.61.502; and
(2) There has been a special allegation pleaded and proven beyond
a reasonable doubt that the defendant committed the driving while under
the influence of intoxicating liquor or any drug offense while driving
in the opposite direction of the normal flow of traffic on a multiple
lane roadway with a posted speed limit of forty-five miles per hour or
greater
the court shall make a finding of fact of the special allegation, or if
a jury is had, the jury shall, if it finds the defendant guilty, also
find a special verdict as to the special allegation.
Sec. 18 RCW 46.25.110 and 1989 c 178 s 13 are each amended to
read as follows:
(1) Notwithstanding any other provision of Title 46 RCW, a person
may not drive, operate, or be in physical control of a commercial motor
vehicle while having alcohol in his or her system.
(2) Law enforcement or appropriate officials shall issue an out-of-service order valid for twenty-four hours against a person who drives,
operates, or is in physical control of a commercial motor vehicle while
having alcohol or THC in his or her system or who refuses to take a
test to determine his or her alcohol content or THC concentration as
provided by RCW 46.25.120.
Sec. 19 RCW 46.25.120 and 2006 c 327 s 5 are each amended to read
as follows:
(1) A person who drives a commercial motor vehicle within this
state is deemed to have given consent, subject to RCW 46.61.506, to
take a test or tests of that person's blood or breath for the purpose
of determining that person's alcohol or THC concentration or the
presence of other drugs.
(2) A test or tests may be administered at the direction of a law
enforcement officer, who after stopping or detaining the commercial
motor vehicle driver, has probable cause to believe that driver was
driving a commercial motor vehicle while having alcohol or THC in his
or her system or while under the influence of any drug.
(3) The law enforcement officer requesting the test under
subsection (1) of this section shall warn the person requested to
submit to the test that a refusal to submit will result in that person
being disqualified from operating a commercial motor vehicle under RCW
46.25.090.
(4) If the person refuses testing, or submits to a test that
discloses an alcohol concentration of 0.04 or more, or a THC
concentration above 0.00, the law enforcement officer shall submit a
sworn report to the department certifying that the test was requested
pursuant to subsection (1) of this section and that the person refused
to submit to testing, or submitted to a test that disclosed an alcohol
concentration of 0.04 or more, or a THC concentration above 0.00.
(5) Upon receipt of the sworn report of a law enforcement officer
under subsection (4) of this section, the department shall disqualify
the driver from driving a commercial motor vehicle under RCW 46.25.090,
subject to the hearing provisions of 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 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 commercial
motor vehicle within this state while having alcohol or THC in the
person's system or while under the influence of any drug, whether the
person refused to submit to the test or tests upon request of the
officer after having been informed that the refusal would result in the
disqualification of the person from driving a commercial motor vehicle,
and, if the test was administered, whether the results indicated an
alcohol concentration of 0.04 percent or more, or a THC concentration
above 0.00. The department shall order that the disqualification of
the person either be rescinded or sustained. Any decision by the
department disqualifying a person from driving a commercial motor
vehicle is stayed and does not take effect while a formal hearing is
pending under 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 the pendency of the
hearing and appeal. If the disqualification of the person is sustained
after the hearing, the person who is disqualified may file a petition
in the superior court of the county of arrest to review the final order
of disqualification by the department in the manner provided in RCW
46.20.334.
(6) If a motor carrier or employer who is required to have a
testing program under 49 C.F.R. 382 knows that a commercial driver in
his or her employ has refused to submit to testing under this section
and has not been disqualified from driving a commercial motor vehicle,
the employer may notify law enforcement or his or her medical review
officer or breath alcohol technician that the driver has refused to
submit to the required testing.
(7) The hearing provisions of this section do not apply to those
persons disqualified from driving a commercial motor vehicle under RCW
46.25.090(7).