BILL REQ. #: H-3643.1
| State of Washington | 63rd Legislature | 2014 Regular Session |
Read first time 01/29/14. Referred to Committee on Public Safety.
AN ACT Relating to impaired driving; amending RCW 10.21.055, 46.20.740, 46.20.308, 46.20.750, 46.25.120, and 46.61.5055; repealing 2013 2nd sp.s. c 35 ss 39 and 40 (uncodified); prescribing penalties; and making appropriations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 10.21.055 and 2013 2nd sp.s. c 35 s 1 are each amended
to read as follows:
(1)(a) When any person charged with or arrested for a violation of
RCW 46.61.502, 46.61.504, 46.61.520, or 46.61.522, in which the person
has a prior offense as defined in RCW 46.61.5055 and the current
offense involves alcohol, is released from custody before arraignment
or trial on bail or personal recognizance, the court authorizing the
release shall require, as a condition of release, that person to
(((a))) (i) have a functioning ignition interlock device installed on
all motor vehicles operated by the person, with proof of installation
filed with the court by the person or the certified interlock provider
within five business days of the date of release from custody or as
soon thereafter as determined by the court based on availability within
the jurisdiction; or (((b))) (ii) comply with 24/7 sobriety program
monitoring, as defined in RCW 36.28A.330; or both.
(b) The court shall immediately notify the department of licensing
when an ignition interlock restriction is imposed as a condition of
release pursuant to (a) of this subsection. Pursuant to RCW 46.20.740,
the department of licensing shall attach or imprint a notation on the
driving record of any person restricted under this section stating that
the person may operate only a motor vehicle equipped with a functioning
ignition interlock device.
(2)(a) Upon acquittal or dismissal of all pending or current
charges relating to a violation of RCW 46.61.502, 46.61.504, 46.61.520,
or 46.61.522, or equivalent local ordinance, the court shall authorize
removal of the ignition interlock device and lift any requirement to
comply with electronic alcohol/drug monitoring imposed under subsection
(1) of this section. Nothing in this section limits the authority of
the court or department under RCW 46.20.720.
(b) Pursuant to (a) of this subsection the court shall immediately
notify the department of licensing regarding the lifting of the
ignition interlock restriction and the department of licensing shall
remove any attachment, imprint, or notation on such person's driving
record relating to the ignition interlock requirement.
Sec. 2 RCW 46.20.740 and 2010 c 269 s 8 are each amended to read
as follows:
(1) The department shall attach or imprint a notation on the
driving record of any person restricted under RCW 46.20.720,
46.61.5055, ((or)) 10.05.140, or 10.21.055 stating that the person may
operate only a motor vehicle equipped with a functioning ignition
interlock device. The department shall determine the person's
eligibility for licensing based upon written verification by a company
doing business in the state that it has installed the required device
on a vehicle owned or operated by the person seeking reinstatement.
If, based upon notification from the interlock provider or otherwise,
the department determines that an ignition interlock required under
this section is no longer installed or functioning as required, the
department shall suspend the person's license or privilege to drive.
Whenever the license or driving privilege of any person is suspended or
revoked as a result of noncompliance with an ignition interlock
requirement, the suspension shall remain in effect until the person
provides notice issued by a company doing business in the state that a
vehicle owned or operated by the person is equipped with a functioning
ignition interlock device.
(2) It is a gross misdemeanor for a person with such a notation on
his or her driving record to operate a motor vehicle that is not so
equipped.
Sec. 3 RCW 46.20.308 and 2013 2nd sp.s. c 35 s 36 are each
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 for the purpose of
determining the alcohol concentration((, THC concentration, or presence
of any drug)) in his or her breath 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. Unless the officer seeks
to have the test administered pursuant to a search warrant, a valid
waiver of the warrant requirement exists, or exigent circumstances as
provided in subsection (4) of this section exists, the officer shall
inform the person of his or her right to refuse the breath 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 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 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 pursuant to a search warrant, a valid waiver of the warrant
requirement, or when exigent circumstances exist.)) 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, no test shall be given except as authorized by ((
(4)a
search warrant)) subsection (4) of this section.
(4) An arresting officer who at the time of arrest has reasonable
grounds to believe that a person arrested for any offense 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 may require that a breath or blood test be
administered pursuant to a search warrant, a valid waiver of the
warrant requirement, or when exigent circumstances exist.
(5) 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 (6) 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 (7) 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) Serve notice in writing that the 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 (7)
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) 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)) any applicable warnings required
by subsection (2) of this section the person refused to submit to a
test of his or her 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.
(6) The department of licensing, upon the receipt of a sworn report
or report under a declaration authorized by RCW 9A.72.085 under
subsection (5)(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 (7) of this section,
whichever occurs first.
(7) A person receiving notification under subsection (5)(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 (5) 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)) pursuant to a search warrant, a valid
waiver of the warrant requirement, or when exigent circumstances exist
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.
(8) 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.
(9)(a) If a person whose driver's license, permit, or privilege to
drive has been or will be suspended, revoked, or denied under
subsection (6) of this section, other than as a result of a breath 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 (6)
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 under
subsection (5) 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 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.
(10) 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. 4 RCW 46.20.750 and 2005 c 200 s 2 are each amended to read
as follows:
(1) A person who is restricted to the use of a vehicle equipped
with an ignition interlock device ((and who tampers with the device or
directs, authorizes, or requests another to tamper with the device, in
order to circumvent the device by modifying, detaching, disconnecting,
or otherwise disabling it,)) is guilty of a gross misdemeanor when, in
order to circumvent the device, the person:
(a) Tampers with the device by modifying, detaching, disconnecting,
or otherwise disabling it;
(b) Directs, authorizes, or requests another to tamper with the
device by modifying, detaching, disconnecting, or otherwise disabling
it;
(c) Directs, authorizes, or requests another to blow or otherwise
exhale into the device.
(2) A person who knowingly assists another person who is restricted
to the use of a vehicle equipped with an ignition interlock device to
circumvent the device or to start and operate that vehicle in violation
of a court order is guilty of a gross misdemeanor. The provisions of
this subsection do not apply if the starting of a motor vehicle, or the
request to start a motor vehicle, equipped with an ignition interlock
device is done for the purpose of safety or mechanical repair of the
device or the vehicle and the person subject to the court order does
not operate the vehicle.
Sec. 5 RCW 46.25.120 and 2013 2nd sp.s. c 35 s 12 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 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 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) A law enforcement officer who at the time of stopping or
detaining a commercial motor vehicle driver has probable cause to
believe that driver was driving a commercial motor vehicle while having
alcohol in his or her system or while under the influence of any drug
may require that a breath or blood test be administered pursuant to a
search warrant, a valid waiver of the warrant requirement, or when
exigent circumstances exist.
(5) If the person refuses testing, or ((submits to)) a test is
administered that discloses an alcohol concentration of 0.04 or more or
any measurable amount of THC concentration, 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 or a breath or
blood test was administered pursuant to subsection (4) of this section
and that the person refused to submit to testing, or ((submitted to))
a test was administered that disclosed an alcohol concentration of 0.04
or more or any measurable amount of THC concentration.
(((5))) (6) Upon receipt of the sworn report of a law enforcement
officer under subsection (((4))) (5) 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 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,
if applicable, and, if the test was administered, whether the results
indicated an alcohol concentration of 0.04 percent or more or any
measurable amount of THC concentration. 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))) (7) 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))) (8) 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).
Sec. 6 RCW 46.61.5055 and 2013 2nd sp.s. c 35 s 13 are each
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 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, the court shall
state in writing the reason for granting the suspension and the facts
upon which the suspension 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 or other separate alcohol
monitoring device to include an alcohol detection breathalyzer, and the
court may restrict the amount of alcohol the offender may consume
during the time the offender is on electronic home monitoring; and
(ii) By a fine of not less than three hundred fifty dollars nor
more than five thousand dollars. Three hundred fifty dollars of the
fine may not be suspended 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. Forty-eight consecutive hours of the
imprisonment may not be suspended 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, the court shall
state in writing the reason for granting the suspension and the facts
upon which the suspension 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 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 or, if available in that county or city, a six-month
period of 24/7 sobriety program monitoring pursuant to RCW 36.28A.300
through 36.28A.390, and the court shall order an expanded alcohol
assessment and treatment, if deemed appropriate by the assessment. 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 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, the court shall state in writing the reason for granting
the suspension and the facts upon which the suspension 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 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 or, if available in that county or city, a six-month
period of 24/7 sobriety program monitoring pursuant to RCW 36.28A.300
through 36.28A.390, and the court shall order an expanded alcohol
assessment and treatment, if deemed appropriate by the assessment. 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 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, the court shall state in writing the reason for granting
the suspension and the facts upon which the suspension 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 unless the court finds the offender to be
indigent.
(3) Two or 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, if available in that county or city, a
six-month period of 24/7 sobriety program monitoring pursuant to RCW
36.28A.300 through 36.28A.390, 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 court shall order
an expanded alcohol assessment and treatment, if deemed appropriate by
the assessment. 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 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, the court shall state in writing the
reason for granting the suspension and the facts upon which the
suspension 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 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, if available in that county or
city, a six-month period of 24/7 sobriety program monitoring pursuant
to RCW 36.28A.300 through 36.28A.390, 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 court shall order an
expanded alcohol assessment and treatment, if deemed appropriate by the
assessment. 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 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, the court shall
state in writing the reason for granting the suspension and the facts
upon which the suspension 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 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. If a person
who is convicted of a violation of RCW 46.61.502 or 46.61.504 committed
the offense while a passenger under the age of sixteen was in the
vehicle, the court shall:
(a) Order 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 an additional twenty-four hours of imprisonment and
a 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 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 an additional five days of imprisonment and a 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 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 an additional ten days of imprisonment and a 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 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;
(b) Whether at the time of the offense the person was driving or in
physical control of a vehicle with one or more passengers;
(c) Whether the driver was driving in the opposite direction of the
normal flow of traffic on a multiple lane highway, as defined by RCW
46.04.350, with a posted speed limit of forty-five miles per hour or
greater; and
(d) Whether a child passenger under the age of sixteen was an
occupant in the driver's vehicle.
(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) Penalty for refusing to take test. 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)(a) Conditions of probation. 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 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 or being in physical control of a motor
vehicle within this state while having an alcohol concentration of 0.08
or more or a THC concentration of 5.00 nanograms per milliliter of
whole blood or higher, 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, the 24/7 sobriety program monitoring,
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;
(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; or
(x) 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;
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;
(b) "Treatment" means alcohol or drug treatment approved by the
department of social and health services;
(c) "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
(d) "Within ten years" means that the arrest for a prior offense
occurred within ten years before or after the arrest for the current
offense.
NEW SECTION. Sec. 7 The sum of one hundred seventy-six thousand
dollars of the state general fund for fiscal year ending June 30, 2014,
and one hundred seventy-six thousand dollars of the state general fund
for fiscal year ending June 30, 2015, or as much thereof as may be
necessary, is appropriated to the Washington state criminal justice
training commission solely for the purposes of RCW 36.28A.320.
NEW SECTION. Sec. 8 The sum of two hundred seventy thousand
dollars from the state general fund for fiscal year ending June 30,
2014, and three hundred sixty thousand dollars of the state general
fund for fiscal year ending June 30, 2015, or as much thereof as may be
necessary, is appropriated for expenditure into the county criminal
justice assistance account. The treasurer shall make quarterly
distributions from the county criminal justice assistance account of
the amounts provided in this section in accordance with RCW 82.14.310,
for the purposes of reimbursing local jurisdictions for increased costs
incurred as a result of mandatory arrest of repeat offenders from the
changes made in RCW 10.31.100(2)(d). The appropriations and
distributions made under this section constitute appropriate
reimbursement for costs for any new programs or increased level of
services for purposes of RCW 43.135.060.
NEW SECTION. Sec. 9 The following acts or parts of acts are each
repealed:
(1) 2013 2nd sp.s. c 35 s 39 (uncodified); and
(2) 2013 2nd sp.s. c 35 s 40 (uncodified).