AN ACT Relating to confiscation of drivers' licenses; amending RCW 46.04.480, 46.20.285, and 46.20.391; reenacting and amending RCW 46.20.308 and 46.20.311; adding new sections to chapter 46.20 RCW; adding a new section to chapter 46.68 RCW; prescribing penalties; and providing effective dates.

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

NEW SECTION. Sec. 1. (1) If, after arrest for vehicular assault or vehicular homicide and after the other applicable conditions and requirements of RCW 46.20.308 have been satisfied, a person submits to a chemical test of his or her blood, breath, or other bodily fluids, or such a test has been administered without that person's express consent as permitted by RCW 46.20.308 (3) or (4), and the test results indicate the person has 0.10 grams or more of alcohol per two hundred ten liters of breath, 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 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 section 3 of this act;

(b) Confiscate the person's Washington state license or permit to drive, if any;

(c) Issue a temporary license as provided for in subsection (2) of this section to any driver who surrenders a current and valid license; and

(d) Immediately notify the department of licensing of the arrest and transmit to the department of licensing any confiscated license or permit and a sworn report that states:

(i) That the officer had reasonable grounds to believe the arrested person committed vehicular assault or vehicular homicide and 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; and

(ii) That after receipt of the warnings required by RCW 46.20.308(2) the person refused to submit, or submitted to chemical testing, or that a test was administered without the person's express consent as permitted under RCW 46.20.308 (3) or (4); and

(iii) That, if a test was administered, the applicable requirements of RCW 46.20.308 were met before administration of the test and that the test was administered in accordance with RCW 46.61.506; and

(iv) That the results of any test administered indicated the person had 0.10 grams or more of alcohol per two hundred ten liters of breath.

(2) The department shall provide law enforcement agencies with temporary license forms and written notice statements for use under subsection (1) of this section. Any temporary license issued under subsection (1) of this section shall indicate that it is effective for forty-five days from the arrest or until the suspension, revocation, or denial of the person's license, permit, or privilege to drive is sustained at a hearing pursuant to section 4 of this act, whichever occurs first. No temporary license is valid to any greater degree than the license or permit that it replaces.

NEW SECTION. Sec. 2. (1) The department shall suspend, revoke, or deny the arrested person's driving privileges as follows:

(a) In the case of a person who has refused a test:

(i) For a first refusal within five years, revocation or denial for one year;

(ii) For a second refusal within five years, revocation or denial for two years.

(b) In the case of a person who has submitted to or been administered a test indicating the person had 0.10 grams or more of alcohol per two hundred ten liters of breath:

(i) For a first incident within five years, suspension or denial for ninety days;

(ii) For a second incident within five years, revocation or denial for one year;

(iii) For a third incident within five years, revocation or denial for two years.

(c) A suspension, revocation, or denial shall take effect when sustained at a hearing under section 4 of this act, or forty-five days after the person's arrest if no hearing was requested, whichever occurs first.

(2) The department shall not grant or reinstate a person's privilege to drive that has been suspended, revoked, or denied under subsection (1) of this section until it has determined the person is eligible for reinstatement under RCW 46.20.031 and 46.61.515 and is otherwise qualified.

(3) For purposes of this section and section 3 of this act, driving privileges include:

(a) A Washington state driver's license or permit;

(b) A nonresident privilege to drive; and

(c) The privilege of a person to apply for a new or duplicate license or permit or to renew a license, permit, or nonresident privilege.

NEW SECTION. Sec. 3. No suspension, revocation, or denial of a driving privilege under section 2 of this act is effective until the department of licensing or a law enforcement officer acting on its behalf notifies the person in writing by personal service, by certified mail, or by first class mail addressed to that person's last known address of record with the department of the department's intention to suspend, revoke, or deny together with the grounds therefor and allows the person a seven-day period to request in writing that the department provide a hearing as provided in section 4 of this act. The notice shall specify the steps the person must take to obtain a hearing. If no written request for a hearing is postmarked or delivered to the department within seven days from the date of notification, the department shall issue an order effective as provided in section 2 of this act. If a request for a hearing is filed in time, the department shall give the person an opportunity for a hearing as provided in section 4 of this act.

NEW SECTION. Sec. 4. (1) Administrative hearings held to determine the propriety of any suspension, revocation, or denial imposed under section 2 of this act shall be in accordance with rules adopted by the director.

(2) The department shall fix a time, no more than forty-five days after arrest, and a place for a hearing to be held in the county in which the arrest was made that resulted in a report being transmitted under section 1 of this act. The hearing may be set for some other county by agreement between the department and the person. If the hearing is not held and an order issued under section 6 of this act within forty-five days after arrest, the suspension, revocation, or denial under section 2 of this act shall not be imposed.

(3) The department shall give the person at least fourteen days advance notice of the time and place of hearing, but the period of notice may be waived by the person. RCW 46.20.332 and 46.20.333 apply to the hearings. The department shall issue a subpoena upon the request of any party and, to the extent required by department rule, upon a statement showing the general relevance and reasonable scope of the evidence sought. The subpoena may be issued with like effect by the person's attorney of record or the office of the attorney general, and the form of the subpoena in each case may be the same as when issued by the agency, except that it shall only be subscribed by the signature of the person's attorney or an assistant attorney general. Every party has the right of cross-examination of any witness who testifies and has the right to submit rebuttal evidence. Subpoenas issued under this section may be enforced in the manner provided by RCW 34.04.105(5).

(4) With respect to arrested drivers who have submitted to or been administered chemical tests, the department by rule may permit the admission into evidence at the hearing of (a) copies of official reports of persons who possess a valid permit or certificate from the state toxicologist to perform tests or chemical analyses of the blood or breath, as to results of particular tests or analyses performed by that person when the copies have been certified as true copies of the report by the writer of the report, under oath, and (b) certificates of Breathalyzer maintenance operators who possess a valid permit or certificate from the state toxicologist, as to the testing and calibration of Breathalyzers or similar machines by that person. The reports or certificates may be admitted without further proof or foundation as prima facie evidence of the facts stated in them unless the arrested driver has given written notice received by the department not less than seven days before the date set for the hearing that he or she requests that the person administering the test, or the Breathalyzer maintenance operator, be produced by the department at the hearing.

NEW SECTION. Sec. 5. The scope of the administrative hearing under section 4 of this act shall include:

(1) With respect to a person who has refused a chemical test, the issues of:

(a) Whether a law enforcement officer had reasonable grounds to believe the person committed vehicular assault or vehicular homicide and had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor;

(b) Whether the person was placed under arrest; and

(c) Whether the person refused to submit to the test upon request of the officer after having been informed that such refusal would result in the revocation or denial of his or her privilege to drive and that the person had the right to additional tests.

(2) With respect to a person upon whom a chemical test was administered, the issues of:

(b) Whether the person was placed under arrest;

(d) Whether the person either submitted to the test or a test was administered without express consent as permitted under RCW 46.20.308; and

(e) Whether the test indicated the person had 0.10 grams or more of alcohol per two hundred ten liters of breath. The person may challenge whether the testing methods used were in accordance with RCW 46.61.506 and were valid and reliable.

NEW SECTION. Sec. 6. After a hearing held under section 4 of this act, the department shall order that the appropriate suspension, revocation, or denial of privileges be imposed effective ten days after receipt of the order. In the alternative, the department may order that the administrative action be dismissed.

NEW SECTION. Sec. 7. (1) If the suspension, revocation, or denial imposed by the department under section 2 of this act is sustained after a hearing, the person whose license, permit, or privilege is affected has the right to file a petition in the superior court of the county of arrest or the county in which the person resides or, if a nonresident of this state, the superior court of Thurston county, for review of the final order of suspension, revocation, or denial by the department. The petition shall be filed within ten days following receipt by the person of the department's final order, or the right to appeal is deemed to have been waived. The review shall be conducted by the court without a jury, and shall be confined to the record, except that in cases of alleged irregularities in procedure before the department, not shown in the record, testimony on that issue may be taken in court. The scope of the review is limited to that prescribed by RCW 7.16.120, governing writs of certiorari.

(2) The filing of the appeal does not stay the effective date of the suspension, revocation, or denial unless it is stayed by the court after motion and argument. Such a stay may be granted only if the court finds upon the arguments and affidavits presented that there is a reasonable probability that the petitioner will prevail upon the merits of the petition, that the public interest will not be substantially harmed by the stay, and that the petitioner will suffer irreparable harm if the order is not stayed. If such a stay is granted it shall provide that it is effective only so long as there is no conviction of the petitioner for a moving violation or no finding that the petitioner has committed a traffic infraction that is a moving violation during the pendency of the appeal.

(3) The court may affirm the department's decision, remand the matter for further administrative proceedings, or reverse the department's order of suspension, revocation, or denial.

(4) The actual costs of preparing and transmitting the record to superior court shall be borne by the petitioner and awarded by the court to the department if the department's decision is affirmed. The costs shall be borne by the department if the department's decision is remanded or reversed.

NEW SECTION. Sec. 8. When it has been finally determined under the procedures of sections 2 through 6 of this act that a nonresident's privilege to operate a motor vehicle in this state has been suspended or revoked, 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 the person has a driver's license.

NEW SECTION. Sec. 9. When the department is required to suspend, revoke, or deny a person's license, permit, or nonresident privilege to drive under either section 2 of this act or under RCW 46.61.515(3), and (1) the department has earlier imposed a suspension, revocation, or denial under the other of those two provisions or is preparing to do so, and (2) each of those two sanctions has been required as the result of civil or criminal proceedings arising from the same arrest, the department shall proceed as follows:

(a) If the civil and criminal sanctions imposed or to be imposed are for the same minimum length of time, the suspension, revocation, or denial imposed by the department is limited to that first imposed and fully effective under one of those provisions;

(b) If the civil and criminal sanctions are of different minimum lengths of time, the department shall impose the sanction of longer duration. If the sanction with the shorter minimum duration has been imposed earlier by the department, the department shall reduce the minimum duration of the longer revocation by the number of days the license, permit, or privilege to drive was actually under suspension, revocation, or denial pursuant to the earlier action by the department.

If a suspension, revocation, or denial of a person's license, permit, or nonresident privilege to drive would have been imposed by the department under section 2 of this act but for the operation of this section, the suspension, revocation, or denial shall be treated as if it had been imposed for the purposes of determining the minimum duration of subsequent suspensions or revocations required under that section.

NEW SECTION. Sec. 10. (1) The director, or his or her designee, shall administer and enforce sections 1 through 9 of this act. The director may adopt such rules as he or she deems necessary to carry out the purposes of sections 1 through 9 of this act.

(2) The department shall prescribe and provide such forms as it deems necessary or desirable to carry out the purposes of sections 1 through 9 of this act.

Sec. 11. Section 46.04.480, chapter 12, Laws of 1961 as last amended by section 1, chapter 407, Laws of 1985 and RCW 46.04.480 are each amended to read as follows:

"Revoke," in all its forms, means the invalidation for a period of one calendar year and thereafter until reissue: PROVIDED, That under the provisions of RCW 46.20.285, 46.20.311, ((or)) 46.61.515, or section 2 of this act and chapter 46.65 RCW the invalidation may last for a period other than one calendar year.

Sec. 12. Section 24, chapter 121, Laws of 1965 ex. sess. as last amended by section 2, chapter 407, Laws of 1985 and RCW 46.20.285 are each amended to read as follows:

The department shall forthwith revoke the license of any driver for the period of one calendar year unless otherwise provided in this section, upon receiving a record of the driver's conviction of any of the following offenses, when the conviction has become final:

(1) For vehicular homicide the period of revocation shall be two years;

(2) Vehicular assault;

(3) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders him incapable of safely driving a motor vehicle, upon a showing by the department's records that the conviction is the second such conviction for the driver within a period of five years. Upon a showing that the conviction is the third such conviction for the driver within a period of five years, the period of revocation shall be two years. A revocation imposed under this subsection shall run concurrently with any corresponding revocation which may be imposed by the department pursuant to section 2 of this act or RCW 46.61.515(3) arising out of the same arrest;

(4) Any felony in the commission of which a motor vehicle is used;

(5) Failure to stop and give information or render aid as required under the laws of this state in the event of a motor vehicle accident resulting in the death or personal injury of another;

(6) Perjury or the making of a false affidavit or statement under oath to the department under Title 46 RCW or under any other law relating to the ownership or operation of motor vehicles;

(7) Reckless driving upon a showing by the department's records that the conviction is the third such conviction for the driver within a period of two years.

Sec. 13. Section 11, chapter 260, Laws of 1981 as last amended by section 1, chapter 64, Laws of 1986 and by section 5, chapter 153, Laws of 1986 and RCW 46.20.308 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 alcoholic content of 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.

(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. However, in those instances where: (a) The person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample; or (b) as a result of a traffic accident the person is being treated for a medical condition in a hospital, clinic, doctor's office, or other similar facility in which a breath testing instrument is not present, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(4). 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 that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, ((~~and~~)) (b) that his or her privilege to drive will be suspended, revoked, or denied if the test is administered and the test indicates the person has 0.10 grams or more of alcohol per two hundred ten liters of breath, and (c) that his or her refusal to take the test may be used in a criminal trial.

(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 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 another person has been injured and there is a reasonable likelihood that such other person may die as a result of injuries sustained in the accident, 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 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 of his or her breath or blood, no test shall be given except as authorized under subsection (3) or (4) of this section.

(6) The department of licensing, upon the receipt of a sworn report of the law enforcement officer that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor and that the person had refused to submit to the test upon the request of the law enforcement officer after being informed that refusal would result in the revocation of his privilege to drive, shall revoke his license or permit to drive or any nonresident operating privilege.

(7) Upon revoking the license or permit to drive or the nonresident operating privilege of any person, the department shall immediately notify the person involved in writing by personal service or by certified mail of its decision and the grounds therefor, and of his right to a hearing, specifying the steps he must take to obtain a hearing. Within ten days after receiving such notice the person may, in writing, request a formal hearing. Upon receipt of such request, the department shall afford the person an opportunity for a hearing as provided in 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 scope of such 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 upon the public highways of this state while under the influence of intoxicating liquor, whether the person was placed under arrest, and whether he refused to submit to the test upon request of the officer after having been informed that such refusal would result in the revocation of his privilege to drive. The department shall order that the revocation either be rescinded or sustained. Any decision by the department revoking a person's driving privilege shall be stayed and shall not take effect while a formal hearing is pending as provided in 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 pendency of the hearing and appeal.

(8) If the revocation is sustained after such a hearing, the person whose license, privilege, or permit is revoked has the right to file a petition in the superior court of the county in which he or she resides, or, if a nonresident of this state, where the charge arose, to review the final order of revocation by the department in the manner provided in RCW 46.20.334.

(9) 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 revoked, the department shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he or she has a license.

Sec. 14. Section 27, chapter 121, Laws of 1965 ex. sess. as last amended by section 1, chapter 211, Laws of 1985 and by section 4, chapter 407, Laws of 1985 and RCW 46.20.311 are each reenacted and amended to read as follows:

(1) The department shall not suspend a driver's license or privilege to drive a motor vehicle on the public highways for a fixed period of more than one year, except as permitted under RCW 46.20.342 or 46.61.515. Whenever the license of any person is suspended by reason of a conviction, a finding that a traffic infraction has been committed, pursuant to chapter 46.29 RCW, or pursuant to RCW 46.20.291, the suspension shall remain in effect and the department shall not issue to the person any new, duplicate, or renewal license until the person pays a reinstatement fee of twenty dollars and gives and thereafter maintains proof of financial responsibility for the future as provided in chapter 46.29 RCW. If the suspension is the result of a violation of RCW 46.61.502 or 46.61.504 or was imposed under section 2(1)(a) or (b) of this act, the reinstatement fee shall be fifty dollars.

(2) Any person whose license or privilege to drive a motor vehicle on the public highways has been revoked, unless the revocation was for a cause which has been removed, is not entitled to have the license or privilege renewed or restored until: (a) After the expiration of one year from the date on which the revoked license was surrendered to and received by the department; (b) after the expiration of the applicable revocation period provided by RCW 46.61.515(3) (b) or (c); (c) after the expiration of two years for persons convicted of vehicular homicide; (d) after the expiration of one year in cases of revocation for the first refusal within five years to submit to a chemical test under RCW 46.20.308; or (e) after the expiration of two years in cases of revocation for the second refusal within five years to submit to a chemical test under RCW 46.20.308. After the expiration of the appropriate period, the person may make application for a new license as provided by law together with a reinstatement fee in the amount of twenty dollars, but if the revocation is the result of a violation of RCW 46.20.308, 46.61.502, or 46.61.504, the reinstatement fee shall be fifty dollars. The department shall not then issue a new license unless it is satisfied after investigation of the driving ability of the person that it will be safe to grant the privilege of driving a motor vehicle on the public highways, and until the person gives and thereafter maintains proof of financial responsibility for the future as provided in chapter 46.29 RCW. A resident without a license or permit whose license or permit was revoked under RCW 46.20.308(6) or section 2 of this act shall give and thereafter maintain proof of financial responsibility for the future as provided in chapter 46.29 RCW.

(3) Whenever the driver's license of any person is suspended pursuant to Article IV of the nonresident violators compact or RCW 46.23.020, the suspension shall remain in effect and the department shall not issue to the person any new or renewal license until the person pays a reinstatement fee of twenty dollars. If the suspension is the result of a violation of the laws of another state, province, or other jurisdiction involving (a) the operation or physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor or drugs, or (b) the refusal to submit to a chemical test of the driver's blood alcohol content, the reinstatement fee shall be fifty dollars.

NEW SECTION. Sec. 15. A new section is added to chapter 46.20 RCW to read as follows:

A suspension or revocation of the license, permit, or nonresident privilege to drive that is required to be imposed by the department of licensing under RCW 46.61.515 shall be coordinated by the department with any suspension or revocation that has been imposed by the department following any civil action it may have taken pursuant to sections 1 through 10 of this act arising out of the same arrest, as required by section 9 of this act.

Sec. 16. Section 1, chapter 5, Laws of 1973 as last amended by section 5, chapter 407, Laws of 1985 and RCW 46.20.391 are each amended to read as follows:

(1) Any person licensed under this chapter whose driving privilege has been suspended or revoked under section 2(1)(b)(i) of this act or who is convicted of an offense relating to motor vehicles for which suspension or revocation of the driver's license is mandatory, other than vehicular homicide or vehicular assault, may submit to the department an application for an occupational driver's license. The department, upon receipt of the prescribed fee and upon determining that the petitioner is engaged in an occupation or trade that makes it essential that the petitioner operate a motor vehicle, may issue an occupational driver's license and may set definite restrictions as provided in RCW 46.20.394. No person may petition for, and the department shall not issue, an occupational driver's license that is effective during the first thirty days of any suspension or revocation imposed under RCW 46.61.515 or pursuant to section 2(1)(b)(i) of this act. A person aggrieved by the decision of the department on the application for an occupational driver's license may request a hearing as provided by rule of the department.

(2) An applicant for an occupational driver's license is eligible to receive such license only if:

(a) Within one year immediately preceding the present conviction or administrative action, the applicant has not been convicted of any offense relating to motor vehicles for which suspension or revocation of a driver's license is mandatory; and

(b) Within five years immediately preceding the present conviction or administrative action, the applicant has not been convicted of driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor under RCW 46.61.502 or 46.61.504, of vehicular homicide under RCW 46.61.520, or of vehicular assault under RCW 46.61.522, or had a license administratively suspended or revoked under section 2 of this act; and

(c) The applicant is engaged in an occupation or trade that makes it essential that he or she operate a motor vehicle; and

(d) The applicant files satisfactory proof of financial responsibility pursuant to chapter 46.29 RCW.

(3) The director shall cancel an occupational driver's license upon receipt of notice that the holder thereof has had a driver's license administratively suspended or revoked under section 2 of this act or has been convicted of operating a motor vehicle in violation of its restrictions, or of an offense that pursuant to chapter 46.20 RCW would warrant suspension or revocation of a regular driver's license. The cancellation is effective as of the date of the conviction or administrative action, and continues with the same force and effect as any suspension or revocation under this title.

NEW SECTION. Sec. 17. A new section is added to chapter 46.68 RCW to read as follows:

After June 30, 1988, thirty dollars of any driver's license reinstatement fee paid under RCW 46.20.311 when the suspension or revocation was done under section 2 of this act shall be deposited by the department in the highway safety fund for the exclusive use of the department in implementing sections 1 through 10 of this act.

NEW SECTION. Sec. 18. Sections 1 through 10 of this act are added to chapter 46.20 RCW.

NEW SECTION. Sec. 19. Sections 1 through 16 of this act shall take effect on January 1, 1989. Section 17 of this act shall take effect on July 1, 1988. The director of licensing may immediately take such steps as are necessary to insure that all sections of this act are implemented on their effective dates.

NEW SECTION. Sec. 20. 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.