BILL REQ. #: S-2782.1
| State of Washington | 63rd Legislature | 2013 1st Special Session |
READ FIRST TIME 05/15/13.
AN ACT Relating to driving under the influence of intoxicating liquor or drugs; amending RCW 2.28.175, 3.66.067, 3.66.068, 3.50.320, 3.50.330, 35.20.255, 9.94A.525, 43.43.395, 46.25.090, 46.25.110, 46.25.120, 46.61.502, 46.61.504, 9.94A.501, 46.61.5249, 46.20.270, 46.61.5058, 46.20.720, 46.20.385, 10.05.140, 10.31.100, 9.94A.535, and 4.24.545; reenacting and amending RCW 46.61.5055, 46.61.5055, and 46.20.308; adding a new section to chapter 10.21 RCW; adding new sections to chapter 36.28A RCW; adding a new section to chapter 43.43 RCW; creating new sections; prescribing penalties; providing an effective date; and providing expiration dates.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 10.21 RCW
to read as follows:
(1) Unless waived by the court, 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) 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 ten days of the date of release
from custody; or (b) comply with 24/7 electronic alcohol/drug
monitoring, as defined in section 29 of this act; or both.
(2) 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, or if charges are not filed
against the person within six months of arrest, 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.
Sec. 2 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 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. 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 3.66.068 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. 5 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. 6 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. 7 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. 8 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 felony driving while under the influence of intoxicating liquor or
any drug, felony physical control of a vehicle while under the
influence of intoxicating liquor or any drug, and serious traffic
offenses 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 prior convictions would be
considered "prior offenses within ten years" as defined in RCW
46.61.5055)) all predicate and prior crimes for the offense as defined
by RCW 46.61.5055(14) shall be included in the offender score, and
prior convictions for 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)) shall always be included in the offender
score. All other convictions of the defendant shall be scored
according to this section.
(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. 9 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. 10 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 any measurable
amount of THC concentration, 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, or with a THC
concentration of 5.00 nanograms per milliliter of whole blood or more,
or a THC concentration above 0.00 if the person is under the age of
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.
Sec. 11 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 or THC 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. 12 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 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) If the person refuses testing, or submits to a test 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 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 any measurable amount of THC
concentration.
(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 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 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) 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).
Sec. 13 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) 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) 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 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 ((or deferred)) unless the court finds the
offender to be indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than two days nor more than 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) 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) 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)) forty 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 period of
24/7 sobriety program monitoring pursuant to sections 26 through 35 of
this act, and the court shall order an 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 ((or deferred))
unless the court finds that the imposition of this mandatory minimum
sentence would impose a substantial risk to the offender's physical or
mental well-being. Whenever the mandatory minimum sentence is
suspended ((or deferred)), the court shall state in writing the reason
for granting the suspension ((or deferral)) and the facts upon which
the suspension ((or deferral)) is based; and
(ii) By a fine of not less than five hundred dollars nor more than
five thousand dollars. Five hundred dollars of the fine may not be
suspended ((or deferred)) unless the court finds the offender to be
indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than ((forty-five)) fifty-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
period of 24/7 sobriety program monitoring pursuant to sections 26
through 35 of this act, and the court shall order an 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)) Fifty-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) 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) 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)) one hundred 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 or, if available in
that county or city, a period of 24/7 sobriety program monitoring
pursuant to sections 26 through 35 of this act, and the court shall
order an 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)) One
hundred days of imprisonment and one hundred twenty days of electronic
home monitoring may not be suspended ((or deferred)) unless the court
finds that the imposition of this mandatory minimum sentence would
impose a substantial risk to the offender's physical or mental well-being. Whenever the mandatory minimum sentence is suspended ((or
deferred)), the court shall state in writing the reason for granting
the suspension ((or deferral)) and the facts upon which the suspension
((or deferral)) is based; and
(ii) By a fine of not less than one thousand dollars nor more than
five thousand dollars. One thousand dollars of the fine may not be
suspended ((or deferred)) unless the court finds the offender to be
indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than one hundred ((twenty)) thirty
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)) If
available in that county or city, the court may order a period of 24/7
sobriety program monitoring pursuant to sections 26 through 35 of this
act in addition to any mandatory minimum term of imprisonment, and the
court shall order an 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)) thirty 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) 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) 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) 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 ((a penalty by)) 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 ((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 penalty by)) 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 ((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 penalty by)) 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 ((or deferred)) unless the court finds the offender to
be indigent.
(7) 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;
(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) An offender punishable under this section is subject to the
alcohol assessment and treatment provisions of RCW 46.61.5056.
(9) The license, permit, or nonresident privilege of a person
convicted of driving or being in physical control of a motor vehicle
while under the influence of intoxicating liquor or drugs must:
(a) If the person's alcohol concentration was less than 0.15, or if
for reasons other than the person's refusal to take a test offered
under RCW 46.20.308 there is no test result indicating the person's
alcohol concentration:
(i) Where there has been no prior offense within seven years, be
suspended or denied by the department for ninety days;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for two years; or
(iii) Where there have been two or more prior offenses within seven
years, be revoked or denied by the department for three years;
(b) If the person's alcohol concentration was at least 0.15:
(i) Where there has been no prior offense within seven years, be
revoked or denied by the department for one year;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for nine hundred days; or
(iii) Where there have been two or more prior offenses within seven
years, be revoked or denied by the department for four years; or
(c) If by reason of the person's refusal to take a test offered
under RCW 46.20.308, there is no test result indicating the person's
alcohol concentration:
(i) Where there have been no prior offenses within seven years, be
revoked or denied by the department for two years;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for three years; or
(iii) Where there have been two or more previous offenses within
seven years, be revoked or denied by the department for four years.
The department shall grant credit on a day-for-day basis for any
portion of a suspension, revocation, or denial already served under
this subsection for a suspension, revocation, or denial imposed under
RCW 46.20.3101 arising out of the same incident.
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) 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) 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) 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) 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) 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; 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) "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. 14 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) 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) 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 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 ((or deferred)) unless the court finds the
offender to be indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than two days nor more than 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) 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) 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)) forty 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 period of
24/7 sobriety program monitoring pursuant to sections 26 through 35 of
this act, and the court shall order an 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 ((or deferred))
unless the court finds that the imposition of this mandatory minimum
sentence would impose a substantial risk to the offender's physical or
mental well-being. Whenever the mandatory minimum sentence is
suspended ((or deferred)), the court shall state in writing the reason
for granting the suspension ((or deferral)) and the facts upon which
the suspension ((or deferral)) is based; and
(ii) By a fine of not less than five hundred dollars nor more than
five thousand dollars. Five hundred dollars of the fine may not be
suspended ((or deferred)) unless the court finds the offender to be
indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than ((forty-five)) fifty-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
period of 24/7 sobriety program monitoring pursuant to sections 26
through 35 of this act, and the court shall order an 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)) Fifty-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) 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) 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)) one hundred 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 or, if available in
that county or city, a period of 24/7 sobriety program monitoring
pursuant to sections 26 through 35 of this act, and the court shall
order an 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)) One
hundred days of imprisonment and one hundred twenty days of electronic
home monitoring may not be suspended ((or deferred)) unless the court
finds that the imposition of this mandatory minimum sentence would
impose a substantial risk to the offender's physical or mental well-being. Whenever the mandatory minimum sentence is suspended ((or
deferred)), the court shall state in writing the reason for granting
the suspension ((or deferral)) and the facts upon which the suspension
((or deferral)) is based; and
(ii) By a fine of not less than one thousand dollars nor more than
five thousand dollars. One thousand dollars of the fine may not be
suspended ((or deferred)) unless the court finds the offender to be
indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than one hundred ((twenty)) thirty
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)) If
available in that county or city, the court may order a period of 24/7
sobriety program monitoring pursuant to sections 26 through 35 of this
act in addition to any mandatory minimum term of imprisonment, and the
court shall order an 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)) thirty 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) 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)) three 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) 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) 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 ((a penalty by)) 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 ((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 penalty by)) 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 ((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 penalty by)) 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 ((or deferred)) unless the court finds the offender to
be indigent.
(7) 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;
(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) An offender punishable under this section is subject to the
alcohol assessment and treatment provisions of RCW 46.61.5056.
(9) The license, permit, or nonresident privilege of a person
convicted of driving or being in physical control of a motor vehicle
while under the influence of intoxicating liquor or drugs must:
(a) If the person's alcohol concentration was less than 0.15, or if
for reasons other than the person's refusal to take a test offered
under RCW 46.20.308 there is no test result indicating the person's
alcohol concentration:
(i) Where there has been no prior offense within seven years, be
suspended or denied by the department for ninety days;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for two years; or
(iii) Where there have been two or more prior offenses within seven
years, be revoked or denied by the department for three years;
(b) If the person's alcohol concentration was at least 0.15:
(i) Where there has been no prior offense within seven years, be
revoked or denied by the department for one year;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for nine hundred days; or
(iii) Where there have been two or more prior offenses within seven
years, be revoked or denied by the department for four years; or
(c) If by reason of the person's refusal to take a test offered
under RCW 46.20.308, there is no test result indicating the person's
alcohol concentration:
(i) Where there have been no prior offenses within seven years, be
revoked or denied by the department for two years;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for three years; or
(iii) Where there have been two or more previous offenses within
seven years, be revoked or denied by the department for four years.
The department shall grant credit on a day-for-day basis for any
portion of a suspension, revocation, or denial already served under
this subsection for a suspension, revocation, or denial imposed under
RCW 46.20.3101 arising out of the same incident.
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) 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) 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) 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) 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) 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; 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) "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. 15 RCW 46.61.502 and 2013 c 3 s 33 (Initiative Measure No.
502) are each amended to read as follows:
(1) A person is guilty of driving while under the influence of
intoxicating liquor, marijuana, or any drug if the person drives a
vehicle within this state:
(a) And the person has, within two hours after driving, an alcohol
concentration of 0.08 or higher as shown by analysis of the person's
breath or blood made under RCW 46.61.506; or
(b) The person has, within two hours after driving, a THC
concentration of 5.00 or higher as shown by analysis of the person's
blood made under RCW 46.61.506; or
(c) While the person is under the influence of or affected by
intoxicating liquor, marijuana, or any drug; or
(d) While the person is under the combined influence of or affected
by intoxicating liquor, marijuana, and any drug.
(2) The fact that a person charged with a violation of this section
is or has been entitled to use a drug under the laws of this state
shall not constitute a defense against a charge of violating this
section.
(3)(a) It is an affirmative defense to a violation of subsection
(1)(a) of this section, which the defendant must prove by a
preponderance of the evidence, that the defendant consumed a sufficient
quantity of alcohol after the time of driving and before the
administration of an analysis of the person's breath or blood to cause
the defendant's alcohol concentration to be 0.08 or more within two
hours after driving. The court shall not admit evidence of this
defense unless the defendant notifies the prosecution prior to the
omnibus or pretrial hearing in the case of the defendant's intent to
assert the affirmative defense.
(b) It is an affirmative defense to a violation of subsection
(1)(b) of this section, which the defendant must prove by a
preponderance of the evidence, that the defendant consumed a sufficient
quantity of marijuana after the time of driving and before the
administration of an analysis of the person's blood to cause the
defendant's THC concentration to be 5.00 or more within two hours after
driving. The court shall not admit evidence of this defense unless the
defendant notifies the prosecution prior to the omnibus or pretrial
hearing in the case of the defendant's intent to assert the affirmative
defense.
(4)(a) Analyses of blood or breath samples obtained more than two
hours after the alleged driving may be used as evidence that within two
hours of the alleged driving, a person had an alcohol concentration of
0.08 or more in violation of subsection (1)(a) of this section, and in
any case in which the analysis shows an alcohol concentration above
0.00 may be used as evidence that a person was under the influence of
or affected by intoxicating liquor or any drug in violation of
subsection (1)(c) or (d) of this section.
(b) Analyses of blood samples obtained more than two hours after
the alleged driving may be used as evidence that within two hours of
the alleged driving, a person had a THC concentration of 5.00 or more
in violation of subsection (1)(b) of this section, and in any case in
which the analysis shows a THC concentration above 0.00 may be used as
evidence that a person was under the influence of or affected by
marijuana in violation of subsection (1)(c) or (d) of this section.
(5) Except as provided in subsection (6) of this section, a
violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or
chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has ((four)) three or more prior offenses ((within
ten years)) as defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating
liquor or any drug, RCW 46.61.520(1)(a);
(ii) Vehicular assault while under the influence of intoxicating
liquor or any drug, RCW 46.61.522(1)(b);
(iii) An out-of-state offense comparable to the offense specified
in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.504(6).
Sec. 16 RCW 46.61.504 and 2013 c 3 s 35 (Initiative Measure No.
502) are each amended to read as follows:
(1) A person is guilty of being in actual physical control of a
motor vehicle while under the influence of intoxicating liquor or any
drug if the person has actual physical control of a vehicle within this
state:
(a) And the person has, within two hours after being in actual
physical control of the vehicle, an alcohol concentration of 0.08 or
higher as shown by analysis of the person's breath or blood made under
RCW 46.61.506; or
(b) The person has, within two hours after being in actual physical
control of a vehicle, a THC concentration of 5.00 or higher as shown by
analysis of the person's blood made under RCW 46.61.506; or
(c) While the person is under the influence of or affected by
intoxicating liquor or any drug; or
(d) While the person is under the combined influence of or affected
by intoxicating liquor and any drug.
(2) The fact that a person charged with a violation of this section
is or has been entitled to use a drug under the laws of this state does
not constitute a defense against any charge of violating this section.
No person may be convicted under this section if, prior to being
pursued by a law enforcement officer, the person has moved the vehicle
safely off the roadway.
(3)(a) It is an affirmative defense to a violation of subsection
(1)(a) of this section which the defendant must prove by a
preponderance of the evidence that the defendant consumed a sufficient
quantity of alcohol after the time of being in actual physical control
of the vehicle and before the administration of an analysis of the
person's breath or blood to cause the defendant's alcohol concentration
to be 0.08 or more within two hours after being in such control. The
court shall not admit evidence of this defense unless the defendant
notifies the prosecution prior to the omnibus or pretrial hearing in
the case of the defendant's intent to assert the affirmative defense.
(b) It is an affirmative defense to a violation of subsection
(1)(b) of this section, which the defendant must prove by a
preponderance of the evidence, that the defendant consumed a sufficient
quantity of marijuana after the time of being in actual physical
control of the vehicle and before the administration of an analysis of
the person's blood to cause the defendant's THC concentration to be
5.00 or more within two hours after being in control of the vehicle.
The court shall not admit evidence of this defense unless the defendant
notifies the prosecution prior to the omnibus or pretrial hearing in
the case of the defendant's intent to assert the affirmative defense.
(4)(a) Analyses of blood or breath samples obtained more than two
hours after the alleged being in actual physical control of a vehicle
may be used as evidence that within two hours of the alleged being in
such control, a person had an alcohol concentration of 0.08 or more in
violation of subsection (1)(a) of this section, and in any case in
which the analysis shows an alcohol concentration above 0.00 may be
used as evidence that a person was under the influence of or affected
by intoxicating liquor or any drug in violation of subsection (1)(c) or
(d) of this section.
(b) Analyses of blood samples obtained more than two hours after
the alleged being in actual physical control of a vehicle may be used
as evidence that within two hours of the alleged being in control of
the vehicle, a person had a THC concentration of 5.00 or more in
violation of subsection (1)(b) of this section, and in any case in
which the analysis shows a THC concentration above 0.00 may be used as
evidence that a person was under the influence of or affected by
marijuana in violation of subsection (1)(c) or (d) of this section.
(5) Except as provided in subsection (6) of this section, a
violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or
chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has ((four)) three or more prior offenses ((within
ten years)) as defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating
liquor or any drug, RCW 46.61.520(1)(a);
(ii) Vehicular assault while under the influence of intoxicating
liquor or any drug, RCW 46.61.522(1)(b);
(iii) An out-of-state offense comparable to the offense specified
in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.502(6).
NEW SECTION. Sec. 17 Funds from the ignition interlock device
revolving account may, subject to appropriation, be used for effective
strategies to reduce motor vehicle-related deaths and serious injuries,
such as those found in the Washington state strategic highway safety
plan: Target Zero.
Sec. 18 RCW 9.94A.501 and 2011 1st sp.s. c 40 s 2 are each
amended to read as follows:
(1) The department shall supervise the following offenders who are
sentenced to probation in superior court, pursuant to RCW 9.92.060,
9.95.204, or 9.95.210:
(a) Offenders convicted of:
(i) Sexual misconduct with a minor second degree;
(ii) Custodial sexual misconduct second degree;
(iii) Communication with a minor for immoral purposes; and
(iv) Violation of RCW 9A.44.132(2) (failure to register); and
(b) Offenders who have:
(i) A current conviction for a repetitive domestic violence offense
where domestic violence has been plead and proven after August 1, 2011;
and
(ii) A prior conviction for a repetitive domestic violence offense
or domestic violence felony offense where domestic violence has been
plead and proven after August 1, 2011.
(2) Misdemeanor and gross misdemeanor offenders supervised by the
department pursuant to this section shall be placed on community
custody.
(3) The department shall supervise every felony offender sentenced
to community custody pursuant to RCW 9.94A.701 or 9.94A.702 whose risk
assessment classifies the offender as one who is at a high risk to
reoffend.
(4) Notwithstanding any other provision of this section, the
department shall supervise an offender sentenced to community custody
regardless of risk classification if the offender:
(a) Has a current conviction for a sex offense or a serious violent
offense and was sentenced to a term of community custody pursuant to
RCW 9.94A.701, 9.94A.702, or 9.94A.507;
(b) Has been identified by the department as a dangerous mentally
ill offender pursuant to RCW 72.09.370;
(c) Has an indeterminate sentence and is subject to parole pursuant
to RCW 9.95.017;
(d) Has a current conviction for violating RCW 9A.44.132(1)
(failure to register) and was sentenced to a term of community custody
pursuant to RCW 9.94A.701;
(e) Has a current conviction for a domestic violence felony offense
where domestic violence has been plead and proven after August 1, 2011,
and a prior conviction for a repetitive domestic violence offense or
domestic violence felony offense where domestic violence has been plead
and proven after August 1, 2011;
(f) Was sentenced under RCW 9.94A.650, 9.94A.655, 9.94A.660, or
9.94A.670; ((or))
(g) Is subject to supervision pursuant to RCW 9.94A.745; or
(h) Was convicted and sentenced under RCW 46.61.520 (vehicular
homicide), RCW 46.61.522 (vehicular assault), RCW 46.61.502(6) (felony
DUI), or RCW 46.61.504(6) (felony physical control).
(5) The department is not authorized to, and may not, supervise any
offender sentenced to a term of community custody or any probationer
unless the offender or probationer is one for whom supervision is
required under this section or RCW 9.94A.5011.
(6) The department shall conduct a risk assessment for every felony
offender sentenced to a term of community custody who may be subject to
supervision under this section or RCW 9.94A.5011.
Sec. 19 RCW 46.61.5249 and 2012 c 183 s 13 are each amended to
read as follows:
(1)(a) A person is guilty of negligent driving in the first degree
if he or she operates a motor vehicle in a manner that is both
negligent and endangers or is likely to endanger any person or
property, and exhibits the effects of having consumed liquor or
marijuana or ((an illegal)) any drug or exhibits the effects of having
inhaled or ingested any chemical, whether or not a legal substance, for
its intoxicating or hallucinatory effects.
(b) It is an affirmative defense to negligent driving in the first
degree by means of exhibiting the effects of having consumed ((an
illegal)) any drug that must be proved by the defendant by a
preponderance of the evidence, that the driver has a valid prescription
for the drug consumed, and has been consuming it according to the
prescription directions and warnings.
(c) Negligent driving in the first degree is a misdemeanor.
(2) For the purposes of this section:
(a) "Negligent" means the failure to exercise ordinary care, and is
the doing of some act that a reasonably careful person would not do
under the same or similar circumstances or the failure to do something
that a reasonably careful person would do under the same or similar
circumstances.
(b) "Exhibiting the effects of having consumed liquor, marijuana,
or any drug" means that a person has the odor of liquor, marijuana, or
any drug on his or her breath, or that by speech, manner, appearance,
behavior, lack of coordination, or otherwise exhibits that he or she
has consumed liquor, marijuana, or any drug, and either:
(i) Is in possession of or in close proximity to a container that
has or recently had liquor, marijuana, or any drug in it; or
(ii) Is shown by other evidence to have recently consumed liquor,
marijuana, or any drug.
(c) "Exhibiting the effects of having consumed ((an illegal)) any
drug" means that a person by speech, manner, appearance, behavior, lack
of coordination, or otherwise exhibits that he or she has consumed ((an
illegal)) any drug and either:
(i) Is in possession of ((an illegal)) any drug; or
(ii) Is shown by other evidence to have recently consumed ((an
illegal)) any drug.
(d) "Exhibiting the effects of having inhaled or ingested any
chemical, whether or not a legal substance, for its intoxicating or
hallucinatory effects" means that a person by speech, manner,
appearance, behavior, or lack of coordination or otherwise exhibits
that he or she has inhaled or ingested a chemical and either:
(i) Is in possession of the canister or container from which the
chemical came; or
(ii) Is shown by other evidence to have recently inhaled or
ingested a chemical for its intoxicating or hallucinatory effects.
(((e) "Illegal drug" means a controlled substance under chapter
69.50 RCW for which the driver does not have a valid prescription or
that is not being consumed in accordance with the prescription
directions and warnings, or a legend drug under chapter 69.41 RCW for
which the driver does not have a valid prescription or that is not
being consumed in accordance with the prescription directions and
warnings.))
(3) Any act prohibited by this section that also constitutes a
crime under any other law of this state may be the basis of prosecution
under such other law notwithstanding that it may also be the basis for
prosecution under this section.
(4) A person convicted of negligent driving in the first degree who
has one or more prior offenses as defined in RCW 46.61.5055(14) within
seven years shall be required, under RCW 46.20.720, to install an
ignition interlock device on all vehicles operated by the person.
Sec. 20 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
the sentence pertaining to 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. 21 RCW 46.61.5058 and 2009 c 479 s 38 are each amended to
read as follows:
(1) Upon the arrest of a person or upon the filing of a complaint,
citation, or information in a court of competent jurisdiction, based
upon probable cause to believe that a person has violated RCW
46.20.740, 46.61.502, or 46.61.504 or any similar municipal ordinance,
if such person has a prior offense within seven years as defined in RCW
46.61.5055, and where the person has been provided written notice that
any transfer, sale, or encumbrance of such person's interest in the
vehicle over which that person was actually driving or had physical
control when the violation occurred, is unlawful pending either
acquittal, dismissal, sixty days after conviction, or other termination
of the charge, such person shall be prohibited from encumbering,
selling, or transferring his or her interest in such vehicle, except as
otherwise provided in (a), (b), and (c) of this subsection, until
either acquittal, dismissal, sixty days after conviction, or other
termination of the charge. The prohibition against transfer of title
shall not be stayed pending the determination of an appeal from the
conviction.
(a) A vehicle encumbered by a bona fide security interest may be
transferred to the secured party or to a person designated by the
secured party;
(b) A leased or rented vehicle may be transferred to the lessor,
rental agency, or to a person designated by the lessor or rental
agency; and
(c) A vehicle may be transferred to a third party or a vehicle
dealer who is a bona fide purchaser or may be subject to a bona fide
security interest in the vehicle unless it is established that (i) in
the case of a purchase by a third party or vehicle dealer, such party
or dealer had actual notice that the vehicle was subject to the
prohibition prior to the purchase, or (ii) in the case of a security
interest, the holder of the security interest had actual notice that
the vehicle was subject to the prohibition prior to the encumbrance of
title.
(2) On conviction for a violation of either RCW 46.20.740,
46.61.502, or 46.61.504 or any similar municipal ordinance where the
person convicted has a prior offense within seven years as defined in
RCW 46.61.5055, the motor vehicle the person was driving or over which
the person had actual physical control at the time of the offense, if
the person has a financial interest in the vehicle, ((is subject to
seizure and forfeiture pursuant to this section)) the court shall
consider at sentencing whether the vehicle shall be seized and
forfeited pursuant to this section if a seizure or forfeiture has not
yet occurred.
(3) A vehicle subject to forfeiture under this chapter may be
seized by a law enforcement officer of this state upon process issued
by a court of competent jurisdiction. Seizure of a vehicle may be made
without process if the vehicle subject to seizure has been the subject
of a prior judgment in favor of the state in a forfeiture proceeding
based upon this section.
(4) Seizure under subsection (3) of this section automatically
commences proceedings for forfeiture. The law enforcement agency under
whose authority the seizure was made shall cause notice of the seizure
and intended forfeiture of the seized vehicle to be served within
fifteen days after the seizure on the owner of the vehicle seized, on
the person in charge of the vehicle, and on any person having a known
right or interest in the vehicle, including a community property
interest. The notice of seizure may be served by any method authorized
by law or court rule, including but not limited to service by certified
mail with return receipt requested. Service by mail is complete upon
mailing within the fifteen-day period after the seizure. Notice of
seizure in the case of property subject to a security interest that has
been perfected on a certificate of title shall be made by service upon
the secured party or the secured party's assignee at the address shown
on the financing statement or the certificate of title.
(5) If no person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
the seized vehicle within forty-five days of the seizure, the vehicle
is deemed forfeited.
(6) If a person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
the seized vehicle within forty-five days of the seizure, the law
enforcement agency shall give the person or persons a reasonable
opportunity to be heard as to the claim or right. The hearing shall be
before the chief law enforcement officer of the seizing agency or the
chief law enforcement officer's designee, except where the seizing
agency is a state agency as defined in RCW 34.12.020, the hearing shall
be before the chief law enforcement officer of the seizing agency or an
administrative law judge appointed under chapter 34.12 RCW, except that
any person asserting a claim or right may remove the matter to a court
of competent jurisdiction. Removal may only be accomplished according
to the rules of civil procedure. The person seeking removal of the
matter must serve process against the state, county, political
subdivision, or municipality that operates the seizing agency, and any
other party of interest, in accordance with RCW 4.28.080 or 4.92.020,
within forty-five days after the person seeking removal has notified
the seizing law enforcement agency of the person's claim of ownership
or right to possession. The court to which the matter is to be removed
shall be the district court when the aggregate value of the vehicle is
within the jurisdictional limit set forth in RCW 3.66.020. A hearing
before the seizing agency and any appeal therefrom shall be under Title
34 RCW. In a court hearing between two or more claimants to the
vehicle involved, the prevailing party shall be entitled to a judgment
for costs and reasonable attorneys' fees. The burden of producing
evidence shall be upon the person claiming to be the legal owner or the
person claiming to have the lawful right to possession of the vehicle.
The seizing law enforcement agency shall promptly return the vehicle to
the claimant upon a determination by the administrative law judge or
court that the claimant is the present legal owner under this title
((46 RCW)) or is lawfully entitled to possession of the vehicle.
(7) When a vehicle is forfeited under this chapter the seizing law
enforcement agency may sell the vehicle, retain it for official use, or
upon application by a law enforcement agency of this state release the
vehicle to that agency for the exclusive use of enforcing this title;
provided, however, that the agency shall first satisfy any bona fide
security interest to which the vehicle is subject under subsection
(1)(a) or (c) of this section.
(8) When a vehicle is forfeited, the seizing agency shall keep a
record indicating the identity of the prior owner, if known, a
description of the vehicle, the disposition of the vehicle, the value
of the vehicle at the time of seizure, and the amount of proceeds
realized from disposition of the vehicle.
(9) Each seizing agency shall retain records of forfeited vehicles
for at least seven years.
(10) Each seizing agency shall file a report including a copy of
the records of forfeited vehicles with the state treasurer each
calendar quarter.
(11) The quarterly report need not include a record of a forfeited
vehicle that is still being held for use as evidence during the
investigation or prosecution of a case or during the appeal from a
conviction.
(12) By January 31st of each year, each seizing agency shall remit
to the state treasurer an amount equal to ten percent of the net
proceeds of vehicles forfeited during the preceding calendar year.
Money remitted shall be deposited in the state general fund.
(13) The net proceeds of a forfeited vehicle is the value of the
forfeitable interest in the vehicle after deducting the cost of
satisfying a bona fide security interest to which the vehicle is
subject at the time of seizure; and in the case of a sold vehicle,
after deducting the cost of sale, including reasonable fees or
commissions paid to independent selling agents.
(14) The value of a sold forfeited vehicle is the sale price. The
value of a retained forfeited vehicle is the fair market value of the
vehicle at the time of seizure, determined when possible by reference
to an applicable commonly used index, such as the index used by the
department of licensing. A seizing agency may, but need not, use an
independent qualified appraiser to determine the value of retained
vehicles. If an appraiser is used, the value of the vehicle appraised
is net of the cost of the appraisal.
Sec. 22 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)(a) 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.))
(b)(i) Except as provided in (b)(ii) of this subsection, 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,))
(ii) The employer exemption does not apply:
(A) 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));
(B) For the first thirty days after an ignition interlock device
has been installed as the result of a first conviction of a violation
of RCW 46.61.502 or 46.61.504 or an equivalent local or out-of-state
statute or ordinance; or
(C) For the first three hundred sixty-five days after an ignition
interlock device has been installed as the result of a second or
subsequent conviction of a violation of RCW 46.61.502 or 46.61.504 or
an equivalent local or out-of-state statute or ordinance.
(c) 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))) (i) For a person who has not previously been restricted
under this section, a period of one year;
(((b))) (ii) For a person who has previously been restricted under
(((a))) (c)(i) of this subsection, a period of five years;
(((c))) (iii) For a person who has previously been restricted under
(((b))) (c)(ii) 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. 23 RCW 46.20.385 and 2012 c 183 s 8 are each amended to read
as follows:
(1)(a) Beginning January 1, 2009, any person licensed under this
chapter who 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, or a
violation of RCW 46.61.520(1)(a) or 46.61.522(1)(b), or who has had or
will have his or her license suspended, revoked, or denied under RCW
46.20.3101, or who is otherwise permitted under subsection (8) of this
section, may submit to the department an application for an ignition
interlock driver's license. The department, upon receipt of the
prescribed fee and upon determining that the petitioner is eligible to
receive the license, may issue an ignition interlock driver's license.
(b) A person may apply for an ignition interlock driver's license
anytime, including immediately after receiving the notices under RCW
46.20.308 or after his or her license is suspended, revoked, or denied.
A person receiving an ignition interlock driver's license waives his or
her right to a hearing or appeal under RCW 46.20.308.
(c) An applicant under this subsection shall provide proof to the
satisfaction of the department that a functioning ignition interlock
device has been installed on all vehicles operated by the person.
(i) The department shall require the person to maintain the device
on all vehicles operated by the person and shall restrict the person to
operating only vehicles equipped with the device, for the remainder of
the period of suspension, revocation, or denial. Subject to the
provisions of RCW 46.20.720(3)(b)(ii), 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.))
(ii) Subject to any periodic renewal requirements established by
the department under this section and subject to any applicable
compliance requirements under this chapter or other law, an ignition
interlock driver's license granted upon a suspension or revocation
under RCW 46.61.5055 or 46.20.3101 extends through the remaining
portion of any concurrent or consecutive suspension or revocation that
may be imposed as the result of administrative action and criminal
conviction arising out of the same incident.
(iii) The time period during which the person is licensed under
this section shall apply on a day-for-day basis toward satisfying the
period of time the ignition interlock device restriction is required
under RCW 46.20.720 and 46.61.5055. Beginning with incidents occurring
on or after September 1, 2011, when calculating the period of time for
the restriction under RCW 46.20.720(3), the department must also give
the person a day-for-day credit for the time period, beginning from the
date of the incident, during which the person kept an ignition
interlock device installed on all vehicles the person operates. For
the purposes of this subsection (1)(c)(iii), the term "all vehicles"
does not include vehicles that would be subject to the employer
exception under RCW 46.20.720(3).
(2) An applicant for an ignition interlock driver's license who
qualifies under subsection (1) of this section is eligible to receive
a license only if the applicant files satisfactory proof of financial
responsibility under chapter 46.29 RCW.
(3) Upon receipt of evidence that a holder of an ignition interlock
driver's license granted under this subsection no longer has a
functioning ignition interlock device installed on all vehicles
operated by the driver, the director shall give written notice by
first-class mail to the driver that the ignition interlock driver's
license shall be canceled. If at any time before the cancellation goes
into effect the driver submits evidence that a functioning ignition
interlock device has been installed on all vehicles operated by the
driver, the cancellation shall be stayed. If the cancellation becomes
effective, the driver may obtain, at no additional charge, a new
ignition interlock driver's license upon submittal of evidence that a
functioning ignition interlock device has been installed on all
vehicles operated by the driver.
(4) A person aggrieved by the decision of the department on the
application for an ignition interlock driver's license may request a
hearing as provided by rule of the department.
(5) The director shall cancel an ignition interlock driver's
license after receiving notice that the holder thereof has been
convicted of operating a motor vehicle in violation of its
restrictions, no longer meets the eligibility requirements, or has been
convicted of or found to have committed a separate offense or any other
act or omission that under this chapter would warrant suspension or
revocation of a regular driver's license. The department must give
notice of the cancellation as provided under RCW 46.20.245. A person
whose ignition interlock driver's license has been canceled under this
section may reapply for a new ignition interlock driver's license if he
or she is otherwise qualified under this section and pays the fee
required under RCW 46.20.380.
(6)(a) Unless costs are waived by the ignition interlock company or
the person is indigent under RCW 10.101.010, the applicant shall pay
the cost of installing, removing, and leasing the ignition interlock
device and shall pay an additional fee of twenty dollars per month.
Payments shall be made directly to the ignition interlock company. The
company shall remit the additional twenty dollar fee to the department.
(b) The department shall deposit the proceeds of the twenty dollar
fee into the ignition interlock device revolving account. Expenditures
from the account may be used only to administer and operate the
ignition interlock device revolving account program. The department
shall adopt rules to provide monetary assistance according to greatest
need and when funds are available.
(7) The department shall adopt rules to implement ignition
interlock licensing. The department shall consult with the
administrative office of the courts, the state patrol, the Washington
association of sheriffs and police chiefs, ignition interlock
companies, and any other organization or entity the department deems
appropriate.
(8)(a) Any person licensed under this chapter who is convicted of
a violation of RCW 46.61.500 when the charge was originally filed as a
violation of RCW 46.61.502 or 46.61.504, or an equivalent local
ordinance, may submit to the department an application for an ignition
interlock driver's license under this section.
(b) A person who does not have any driver's license under this
chapter, but who would otherwise be eligible under this section to
apply for an ignition interlock license, may submit to the department
an application for an ignition interlock license. The department may
require the person to take any driver's licensing examination under
this chapter ((46.20 RCW)) and may require the person to also apply and
qualify for a temporary restricted driver's license under RCW
46.20.391.
Sec. 24 RCW 10.05.140 and 2011 c 293 s 8 are each amended to read
as follows:
As a condition of granting a deferred prosecution petition, the
court shall order that the petitioner shall not operate a motor vehicle
upon the public highways without a valid operator's license and proof
of liability insurance. The amount of liability insurance shall be
established by the court at not less than that established by RCW
46.29.490. As a condition of granting a deferred prosecution petition
on any alcohol-dependency based case, the court shall also order the
installation of an ignition interlock under RCW 46.20.720. The
required periods of use of the interlock shall be not less than the
periods provided for in RCW 46.20.720(3) (((a), (b), and (c))). As a
condition of granting a deferred prosecution petition, the court may
order the petitioner to make restitution and to pay costs as defined in
RCW 10.01.160. To help ensure continued sobriety and reduce the
likelihood of reoffense, the court may order reasonable conditions
during the period of the deferred prosecution including, but not
limited to, attendance at self-help recovery support groups for
alcoholism or drugs, complete abstinence from alcohol and all
nonprescribed mind-altering drugs, periodic urinalysis or breath
analysis, and maintaining law-abiding behavior. The court may
terminate the deferred prosecution program upon violation of the
deferred prosecution order.
Sec. 25 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; or
(d) The person has violated RCW 46.61.502 or 46.61.504 or an
equivalent local ordinance and the police officer has knowledge that
the person has a prior offense as defined in RCW 46.61.5055 within ten
years.
(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 46.20.342, relating to driving a motor vehicle while
operator's license is suspended or revoked;
(f) 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.
NEW SECTION. Sec. 26 There is created a 24/7 sobriety program to
be administered by the Washington association of sheriffs and police
chiefs. The program shall coordinate efforts among various local
government entities for the purpose of implementing alternatives to
incarceration for offenders convicted under RCW 46.61.502 or 46.61.504
with one or more prior convictions under RCW 46.61.502 or 46.61.504.
NEW SECTION. Sec. 27 The Washington association of sheriffs and
police chiefs shall conduct a 24/7 sobriety program pilot project.
(1) Pilot project sites shall be established in no more than three
counties and two cities. Local jurisdictions outside of the pilot
project sites are encouraged to establish a 24/7 sobriety program as
soon as practicable.
(2) The Washington association of sheriffs and police chiefs must,
to the greatest extent possible, select pilot project sites from
diverse geographic areas. The cities selected for participation in the
project must not be from within a county selected for the program.
(3) The Washington association of sheriffs and police chiefs shall
develop criteria for participation in the 24/7 sobriety program pilot
project including, but not limited to:
(a) Geographic diversity;
(b) Sufficient volume of eligible participants to provide useable
data for the pilot;
(c) County or city commitment to administration of the program; and
(d) Capability of the county or city law enforcement agency to
effectively accommodate and administer the program.
(4) The Washington association of sheriffs and police chiefs shall
provide a study of the 24/7 sobriety program project measuring changes
in recidivism and related county or city savings or costs.
(5) The Washington association of sheriffs and police chiefs shall
report preliminary findings and final results of the study to the
governor and the legislature on an annual basis. It is the intent of
the legislature that the 24/7 sobriety program shall achieve the goal
of implementation statewide by January 1, 2019.
NEW SECTION. Sec. 28 There is hereby established in the state
treasury the 24/7 sobriety account. The account shall be maintained
and administered by the Washington association of sheriffs and police
chiefs to defray costs of operating the 24/7 sobriety program and
funding support services. The Washington association of sheriffs and
police chiefs may accept for deposit in the account money from
donations, gifts, grants, participation fees, and user fees or
payments. Expenditures from the account shall be budgeted through the
normal budget process.
NEW SECTION. Sec. 29 The definitions in this section apply
throughout sections 26 through 35 of this act unless the context
clearly requires otherwise.
(1) "24/7 electronic alcohol/drug monitoring" means the monitoring
by the use of any electronic instrument that is capable of determining
and monitoring the presence of alcohol or drugs in a person's body and
includes any associated equipment a participant needs in order for the
device to properly perform. Monitoring may also include mandatory
urine analysis tests as ordered by the court.
(2) "Participant" means a person who has one or more prior
convictions for a violation of RCW 46.61.502 or 46.61.504 and who has
been ordered by a court to participate in the 24/7 sobriety program.
(3) "Participating agency" means a sheriff's office or a designated
entity named by a sheriff that has agreed to participate in the 24/7
sobriety program by enrolling participants, administering one or more
of the tests, and submitting reports to the Washington association of
sheriffs and police chiefs.
(4) "Participation agreement" means a written document executed by
a participant agreeing to participate in the 24/7 sobriety program in
a form approved by the Washington association of sheriffs and police
chiefs that contains the following information:
(a) The type, frequency, and time period of testing;
(b) The location of testing;
(c) The fees and payment procedures required for testing; and
(d) The responsibilities and obligations of the participant under
the 24/7 sobriety program.
(5) "24/7 sobriety program" means a twenty-four hour and seven day
a week sobriety program in which a participant submits to the testing
of the participant's blood, breath, urine, or other bodily substances
in order to determine the presence of alcohol, marijuana, or any
controlled substance in the participant's body.
NEW SECTION. Sec. 30 Each county or city, through its sheriff or
chief, may participate in the 24/7 sobriety program. If a sheriff or
chief is unwilling or unable to participate in the 24/7 sobriety
program, the sheriff or chief may designate an entity willing to
provide the service.
NEW SECTION. Sec. 31 The court may condition any bond or
pretrial release upon participation in the 24/7 sobriety program and
payment of associated costs and expenses, if available.
NEW SECTION. Sec. 32 The Washington association of sheriffs and
police chiefs may adopt policies and procedures for the administration
of the 24/7 sobriety program to:
(1) Provide for procedures and apparatus for testing;
(2) Establish fees and costs for participation in the program to be
paid by the participants;
(3) Require the submission of reports and information by law
enforcement agencies within this state.
NEW SECTION. Sec. 33 (1) Funds in the 24/7 sobriety account
shall be distributed as follows:
(a) Any daily user fee, installation fee, deactivation fee,
enrollment fee, or monitoring fee collected under the 24/7 sobriety
program shall be collected by the sheriff or chief, or an entity
designated by the sheriff or chief, and deposited with the county or
city treasurer of the proper county or city, the proceeds of which
shall be applied and used only to defray the recurring costs of the
24/7 sobriety program including maintaining equipment, funding support
services, and ensuring compliance; and
(b) Any participation fee collected in the administration of
testing under the 24/7 sobriety program to cover program administration
costs incurred by the Washington association of sheriffs and police
chiefs shall be collected by the sheriff or chief, or an entity
designated by the sheriff or chief, and deposited in the 24/7 sobriety
account.
(2) All applicable fees shall be paid by the participant
contemporaneously or in advance of the time when the fee becomes due.
NEW SECTION. Sec. 34 The court shall not waive or reduce fees or
associated costs charged for participation in the 24/7 sobriety
program.
NEW SECTION. Sec. 35 (1) The court shall order fifteen days of
participation in the 24/7 sobriety program for every one day of
imprisonment suspended under RCW 46.61.5055.
(2) A participant who violates the terms of participation in the
24/7 sobriety program or does not pay the required fees or associated
costs shall:
(a) Receive a written warning notice for a first violation;
(b) Serve a term of five days imprisonment for a second violation;
(c) Serve a term of ten days imprisonment for a third violation;
and
(d) For a fourth violation, the participant shall serve the entire
remaining sentence imposed by the court.
(3) A sheriff or chief, or the designee of a sheriff or chief, who
has probable cause to believe that a participant has violated the terms
of participation in the 24/7 sobriety program or has not paid the
required fees or associated costs shall immediately take the
participant into custody and cause him or her to be held until an
appearance before a judge on the next judicial day.
Sec. 36 RCW 4.24.545 and 2006 c 130 s 3 are each amended to read
as follows:
Local governments, their subdivisions and employees, the department
of corrections and its employees, and the Washington association of
sheriffs and police chiefs and its employees are immune from civil
liability for damages arising from incidents involving offenders who
are placed on electronic monitoring or who are participating in the
24/7 sobriety program, unless it is shown that an employee acted with
gross negligence or bad faith.
NEW SECTION. Sec. 37 (1) Any funding provided during the 2013-2015 biennium for the ignition interlock program at the Washington
state patrol that is in addition to any funding identified in chapter
. . . (Engrossed Substitute Senate Bill No. 5024), Laws of 2013
(omnibus transportation appropriations act) may only be used to provide
field officers to work directly with manufacturers, service centers,
technicians, and participants in the program. This may include up to
one full-time equivalent noncommissioned staff to provide
administrative support for the program. Any funding provided as
identified in this section must be used to supplement and not supplant
other funds being used to fund the ignition interlock program.
(2) This section expires July 1, 2015.
NEW SECTION. Sec. 38 A new section is added to chapter 43.43 RCW
to read as follows:
(1) Any officer conducting field inspections of ignition interlock
devices under the ignition interlock program shall report violations by
program participants to the court.
(2) The Washington state patrol may not be held liable for any
damages resulting from any act or omission in conducting activities
under the ignition interlock program, other than acts or omissions
constituting gross negligence or willful or wanton misconduct.
Sec. 39 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 ((
(d)marked)) license or
permit, if any, is a temporary license that is valid for sixty days
from the date of arrest or from the date notice has been given in the
event notice is given by the department following a blood test, or
until the suspension, revocation, or denial of the person's license,
permit, or privilege to drive is sustained at a hearing pursuant to
subsection (8) of this section, whichever occurs first. No temporary
license is valid to any greater degree than the license or permit that
it replaces; and
(((e))) (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. 40 RCW 9.94A.535 and 2011 c 87 s 1 are each amended to read
as follows:
The court may impose a sentence outside the standard sentence range
for an offense if it finds, considering the purpose of this chapter,
that there are substantial and compelling reasons justifying an
exceptional sentence. Facts supporting aggravated sentences, other
than the fact of a prior conviction, shall be determined pursuant to
the provisions of RCW 9.94A.537.
Whenever a sentence outside the standard sentence range is imposed,
the court shall set forth the reasons for its decision in written
findings of fact and conclusions of law. A sentence outside the
standard sentence range shall be a determinate sentence.
If the sentencing court finds that an exceptional sentence outside
the standard sentence range should be imposed, the sentence is subject
to review only as provided for in RCW 9.94A.585(4).
A departure from the standards in RCW 9.94A.589 (1) and (2)
governing whether sentences are to be served consecutively or
concurrently is an exceptional sentence subject to the limitations in
this section, and may be appealed by the offender or the state as set
forth in RCW 9.94A.585 (2) through (6).
(1) Mitigating Circumstances - Court to Consider
The court may impose an exceptional sentence below the standard
range if it finds that mitigating circumstances are established by a
preponderance of the evidence. The following are illustrative only and
are not intended to be exclusive reasons for exceptional sentences.
(a) To a significant degree, the victim was an initiator, willing
participant, aggressor, or provoker of the incident.
(b) Before detection, the defendant compensated, or made a good
faith effort to compensate, the victim of the criminal conduct for any
damage or injury sustained.
(c) The defendant committed the crime under duress, coercion,
threat, or compulsion insufficient to constitute a complete defense but
which significantly affected his or her conduct.
(d) The defendant, with no apparent predisposition to do so, was
induced by others to participate in the crime.
(e) The defendant's capacity to appreciate the wrongfulness of his
or her conduct, or to conform his or her conduct to the requirements of
the law, was significantly impaired. Voluntary use of drugs or alcohol
is excluded.
(f) The offense was principally accomplished by another person and
the defendant manifested extreme caution or sincere concern for the
safety or well-being of the victim.
(g) The operation of the multiple offense policy of RCW 9.94A.589
results in a presumptive sentence that is clearly excessive in light of
the purpose of this chapter, as expressed in RCW 9.94A.010.
(h) The defendant or the defendant's children suffered a continuing
pattern of physical or sexual abuse by the victim of the offense and
the offense is a response to that abuse.
(i) The defendant was making a good faith effort to obtain or
provide medical assistance for someone who is experiencing a drug-related overdose.
(j) The current offense involved domestic violence, as defined in
RCW 10.99.020, and the defendant suffered a continuing pattern of
coercion, control, or abuse by the victim of the offense and the
offense is a response to that coercion, control, or abuse.
(2) Aggravating Circumstances - Considered and Imposed by the Court
The trial court may impose an aggravated exceptional sentence
without a finding of fact by a jury under the following circumstances:
(a) The defendant and the state both stipulate that justice is best
served by the imposition of an exceptional sentence outside the
standard range, and the court finds the exceptional sentence to be
consistent with and in furtherance of the interests of justice and the
purposes of the sentencing reform act.
(b) The defendant's prior unscored misdemeanor or prior unscored
foreign criminal history results in a presumptive sentence that is
clearly too lenient in light of the purpose of this chapter, as
expressed in RCW 9.94A.010.
(c) The defendant has committed multiple current offenses and the
defendant's high offender score results in some of the current offenses
going unpunished.
(d) The failure to consider the defendant's prior criminal history
which was omitted from the offender score calculation pursuant to RCW
9.94A.525 results in a presumptive sentence that is clearly too
lenient.
(3) Aggravating Circumstances - Considered by a Jury - Imposed by
the Court
Except for circumstances listed in subsection (2) of this section,
the following circumstances are an exclusive list of factors that can
support a sentence above the standard range. Such facts should be
determined by procedures specified in RCW 9.94A.537.
(a) The defendant's conduct during the commission of the current
offense manifested deliberate cruelty to the victim.
(b) The defendant knew or should have known that the victim of the
current offense was particularly vulnerable or incapable of resistance.
(c) The current offense was a violent offense, and the defendant
knew that the victim of the current offense was pregnant.
(d) The current offense was a major economic offense or series of
offenses, so identified by a consideration of any of the following
factors:
(i) The current offense involved multiple victims or multiple
incidents per victim;
(ii) The current offense involved attempted or actual monetary loss
substantially greater than typical for the offense;
(iii) The current offense involved a high degree of sophistication
or planning or occurred over a lengthy period of time; or
(iv) The defendant used his or her position of trust, confidence,
or fiduciary responsibility to facilitate the commission of the current
offense.
(e) The current offense was a major violation of the Uniform
Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to
trafficking in controlled substances, which was more onerous than the
typical offense of its statutory definition: The presence of ANY of
the following may identify a current offense as a major VUCSA:
(i) The current offense involved at least three separate
transactions in which controlled substances were sold, transferred, or
possessed with intent to do so;
(ii) The current offense involved an attempted or actual sale or
transfer of controlled substances in quantities substantially larger
than for personal use;
(iii) The current offense involved the manufacture of controlled
substances for use by other parties;
(iv) The circumstances of the current offense reveal the offender
to have occupied a high position in the drug distribution hierarchy;
(v) The current offense involved a high degree of sophistication or
planning, occurred over a lengthy period of time, or involved a broad
geographic area of disbursement; or
(vi) The offender used his or her position or status to facilitate
the commission of the current offense, including positions of trust,
confidence or fiduciary responsibility (e.g., pharmacist, physician, or
other medical professional).
(f) The current offense included a finding of sexual motivation
pursuant to RCW 9.94A.835.
(g) The offense was part of an ongoing pattern of sexual abuse of
the same victim under the age of eighteen years manifested by multiple
incidents over a prolonged period of time.
(h) The current offense involved domestic violence, as defined in
RCW 10.99.020, and one or more of the following was present:
(i) The offense was part of an ongoing pattern of psychological,
physical, or sexual abuse of a victim or multiple victims manifested by
multiple incidents over a prolonged period of time;
(ii) The offense occurred within sight or sound of the victim's or
the offender's minor children under the age of eighteen years; or
(iii) The offender's conduct during the commission of the current
offense manifested deliberate cruelty or intimidation of the victim.
(i) The offense resulted in the pregnancy of a child victim of
rape.
(j) The defendant knew that the victim of the current offense was
a youth who was not residing with a legal custodian and the defendant
established or promoted the relationship for the primary purpose of
victimization.
(k) The offense was committed with the intent to obstruct or impair
human or animal health care or agricultural or forestry research or
commercial production.
(l) The current offense is trafficking in the first degree or
trafficking in the second degree and any victim was a minor at the time
of the offense.
(m) The offense involved a high degree of sophistication or
planning.
(n) The defendant used his or her position of trust, confidence, or
fiduciary responsibility to facilitate the commission of the current
offense.
(o) The defendant committed a current sex offense, has a history of
sex offenses, and is not amenable to treatment.
(p) The offense involved an invasion of the victim's privacy.
(q) The defendant demonstrated or displayed an egregious lack of
remorse.
(r) The offense involved a destructive and foreseeable impact on
persons other than the victim.
(s) The defendant committed the offense to obtain or maintain his
or her membership or to advance his or her position in the hierarchy of
an organization, association, or identifiable group.
(t) The defendant committed the current offense shortly after being
released from incarceration.
(u) The current offense is a burglary and the victim of the
burglary was present in the building or residence when the crime was
committed.
(v) The offense was committed against a law enforcement officer who
was performing his or her official duties at the time of the offense,
the offender knew that the victim was a law enforcement officer, and
the victim's status as a law enforcement officer is not an element of
the offense.
(w) The defendant committed the offense against a victim who was
acting as a good samaritan.
(x) The defendant committed the offense against a public official
or officer of the court in retaliation of the public official's
performance of his or her duty to the criminal justice system.
(y) The victim's injuries substantially exceed the level of bodily
harm necessary to satisfy the elements of the offense. This aggravator
is not an exception to RCW 9.94A.530(2).
(z)(i)(A) The current offense is theft in the first degree, theft
in the second degree, possession of stolen property in the first
degree, or possession of stolen property in the second degree; (B) the
stolen property involved is metal property; and (C) the property damage
to the victim caused in the course of the theft of metal property is
more than three times the value of the stolen metal property, or the
theft of the metal property creates a public hazard.
(ii) For purposes of this subsection, "metal property" means
commercial metal property, private metal property, or nonferrous metal
property, as defined in RCW 19.290.010.
(aa) The defendant committed the offense with the intent to
directly or indirectly cause any benefit, aggrandizement, gain, profit,
or other advantage to or for a criminal street gang as defined in RCW
9.94A.030, its reputation, influence, or membership.
(bb) The current offense involved paying to view, over the internet
in violation of RCW 9.68A.075, depictions of a minor engaged in an act
of sexually explicit conduct as defined in RCW 9.68A.011(4) (a) through
(g).
(cc) The offense was intentionally committed because the defendant
perceived the victim to be homeless, as defined in RCW 9.94A.030.
(dd) During the commission of the current offense, the defendant
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.
NEW SECTION. Sec. 41 (1) The Washington impaired driving work
group is established to study effective strategies to reducing vehicle
related deaths and serious injuries that are a result of impaired
driving incidents in Washington.
(2) Members of the work group shall consist of the following
members:
(a) One member from each of the two largest caucuses of the senate,
appointed by the president of the senate;
(b) One member from each of the two largest caucuses of the house
of representatives, appointed by the speaker of the house of
representatives;
(c) The chief of the Washington state patrol, or the chief's
designee;
(d) The director of the liquor control board, or the director's
designee;
(e) The director of the department of licensing, or the director's
designee;
(f) The secretary of the department of corrections, or the
secretary's designee;
(g) The secretary of the department of social and health services,
or the secretary's designee;
(h) One member representing the Washington traffic safety
commission;
(i) The executive director of the Washington association of
sheriffs and police chiefs, or the executive director's designee;
(j) One member representing the superior court judges' association;
(k) One member representing the district and municipal court
judges' association;
(l) One member representing the Washington state association of
counties;
(m) One member representing the Washington association of
prosecuting attorneys;
(n) One member representing the Washington defender's association
or the Washington association of criminal defense lawyers;
(o) One member representing the Washington state association of
drug court professionals;
(p) One member representing the ignition interlock industry;
(q) One member representing the Washington retail association;
(r) One member representing the Washington state association of
cities;
(s) One representative of the state association of counties;
(t) One representative representing driving under the influence
victim impact panels; and
(u) Representatives, appointed by the governor, that shall include,
but are not limited to:
(i) City law enforcement;
(ii) County law enforcement;
(iii) Court administrators; and
(iv) Driving under the influence victims or family members of a
victim.
(3) The chief of the Washington state patrol or the chief's
designee shall convene the initial meeting of the work group.
(4) Members of the work group shall select the chair of the work
group.
(5) At a minimum, the work group shall research, review, and make
recommendations on the following:
(a) Providing effective strategies for reducing motor vehicle-related deaths and serious injuries due to impaired driving;
(b) Considering the minimum number of previous impaired driving
convictions that must be counted before constituting and being
punishable as a felony offense;
(c) Increasing mandatory minimum penalties and fines for repeat
offenders;
(d) Promoting and monitoring the use of mandatory ignition
interlocks;
(e) The advantages and disadvantages of creating sobriety
checkpoints;
(f) Requiring mandatory arrests for a first offense for an impaired
driving offense;
(g) Increasing treatment and rehabilitation for repeat offenders;
(h) Reviewing the penalties for refusing to take a breath or blood
test for the purpose of determining the alcohol concentration or
presence of any drugs;
(i) Increasing funding for prevention, intervention, suppression,
and prosecution of impaired driving offenses;
(j) Prohibiting the sale of alcohol to offenders convicted of
repeat impaired driving offenses;
(k) Improving prosecution and encouraging prosecutors to
aggressively enforce impaired driving laws;
(l) Increasing the number of driving under the influence courts and
court-related services;
(m) Creating state and local impaired driving enforcement task
forces to increase the visibility of enforcement;
(n) Promoting education and prevention strategies; and
(o) Encouraging private sector collaboration.
(6) The work group shall compile its findings and recommendations
into a final report and provide its report to the legislature and
governor by December 1, 2013.
(7) The work group shall function within existing resources and no
specific budget may be provided to complete the study. The
participants of the study group are encouraged to donate their time to
offset any costs.
(8) This section expires January 1, 2014.
NEW SECTION. Sec. 42 Sections 14 through 16, 30, 31, and 33
through 35 of this act take effect January 1, 2014.
NEW SECTION. Sec. 43 Section 13 of this act expires January 1,
2014.
NEW SECTION. Sec. 44 Sections 26 through 35 of this act are each
added to chapter
NEW SECTION. Sec. 45 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.