5341-S.E

AN ACT Relating to driving while under the influence of intoxicating liquor or drugs; amending RCW 46.20.285, 46.04.580, 46.20.308, 46.20.311, 46.20.311, 46.20.391, 46.61.515, and 46.68.060; adding a new section to chapter 46.61 RCW; adding new sections to chapter 46.04 RCW; adding new sections to chapter 46.20 RCW; creating new sections; prescribing penalties; providing an effective date; and declaring an emergency.

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

NEW SECTION. Sec. 1. A new section is added to chapter 46.61 RCW to read as follows:

(1)(a) The court shall confiscate from every person who is convicted of a second violation of RCW 46.61.502 or 46.61.504 within a five-year period the Washington state vehicle registration and vehicle license plates of the vehicle the person was driving at the time of the violation, if the person is the owner of the vehicle, and if the person is not the owner of the vehicle, the court shall confiscate the Washington state vehicle registration and vehicle license plates of a vehicle owned by the person, if any. The person shall have seven days to surrender the Washington state vehicle registration and vehicle license plates.

(b) The Washington state vehicle registration and vehicle license plates shall be held for a period of ninety days from the date of surrender.

(c) The court shall immediately notify the department of licensing of the confiscation and the duration of the confiscation. No Washington state vehicle registration or vehicle license plates may be issued by the department to the person during the period of confiscation.

(d) No confiscation under this section affects the right of any person to transfer or acquire title in the vehicle, or the right of any person other than the arrested driver to become the registered owner of the vehicle.

(e) In any case provided for in this section, where a Washington state vehicle registration or vehicle license is to be confiscated, the confiscation shall be stayed and shall not take effect until after the determination of any appeal from the conviction which may lawfully be taken, but in case the conviction is sustained on appeal the confiscation takes effect as of the date that the conviction becomes effective for other purposes.

(2)(a) On a third or subsequent conviction for a violation of RCW 46.61.502 or 46.61.504 within a five-year period the motor vehicle the person was driving at the time of the violation, if the person is the owner of the vehicle, shall be seized by a law enforcement officer of this state upon process issued by the court issuing the conviction.

(b) Proceedings for forfeiture shall be deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the vehicle seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized vehicle. 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 shall be deemed complete upon mailing within the fifteen-day period following the seizure.

(c) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the vehicle within forty-five days of the seizure, the vehicle seized shall be deemed forfeited.

(d) If any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the vehicle within forty-five days of the seizure, the person or persons shall be afforded 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(4), 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 if the value of the vehicle involved is more than five hundred dollars. The court to which the matter is to be removed shall be the district court when the 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, 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 lawful 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 lawful owner or is lawfully entitled to possession thereof.

(e) When a vehicle is forfeited under this chapter the seizing law enforcement agency may:

(i) Retain it for official use or upon application by any law enforcement agency of this state release such vehicle to such agency for the exclusive use of enforcing the provisions of this chapter;

(ii) Sell the vehicle; or

(iii) Remove it for disposition in accordance with law.

(f)(i) 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.

(ii) Each seizing agency shall retain records of forfeited vehicles for at least seven years.

(iii) Each seizing agency shall file a report including a copy of the records of forfeited vehicles with the state treasurer each calendar quarter.

(iv) The quarterly report need not include a record of forfeited vehicles that are still being held for use as evidence during the investigation or prosecution of a case or during the appeal from a conviction.

(g) Forfeited vehicles and net proceeds shall be retained by the seizing law enforcement agency exclusively for the expansion and improvement of law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources.

(h) A forfeiture of a motor vehicle encumbered by a bona fide security interest is subject to the interest of the secured party.

Sec. 2. RCW 46.20.285 and 1990 c 250 s 43 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 the driver 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;

(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 or resulting in damage to a vehicle that is driven or attended by 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;

(8) A felony violation of chapter 69.50 RCW. Upon a showing that the conviction is the second such conviction within a period of five years, the period of revocation shall be two years.

NEW SECTION. Sec. 3. The purpose of sections 3 through 17 of this act is:

(1) To provide safety for all persons using the highways of this state by quickly suspending or revoking the driving privilege of those persons who have shown themselves to be safety hazards by driving with an excessive concentration of alcohol in their bodies; and

(2) To guard against the potential for any erroneous deprivation of the driving privilege by providing an opportunity for administrative review prior to the effective date of the suspension or revocation.

NEW SECTION. Sec. 4. A new section is added to chapter 46.04 RCW to read as follows:

"Alcohol concentration" means (1) the grams of alcohol per two hundred ten liters of a person's breath, or (2) the percent by weight of alcohol in a person's blood.

NEW SECTION. Sec. 5. A new section is added to chapter 46.04 RCW to read as follows:

"Test" means the test of a person's breath for alcohol concentration by infrared test method consisting of the person insufflating deep lung air samples at least twice into the instrument sufficient to allow two separate measurements. There must be sufficient time between the provision of each sample by the person to permit the instrument to measure each sample individually. The two breath samples supplied by the individual shall constitute one test. An accurate test is presumed if the results of each measurement is within plus or minus ten percent of the average of the two measurements.

Sec. 6. RCW 46.04.580 and 1990 c 250 s 22 are each amended to read as follows:

"Suspend," in all its forms, means invalidation for any period less than one calendar year and thereafter until reinstatement. However, under RCW 46.61.515 and section 8 of this act the invalidation may last for more than one calendar year.

Sec. 7. RCW 46.20.308 and 1989 c 337 s 8 are each amended to read as follows:

(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath 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 alcohol concentration of the person's breath or blood meets or exceeds the limits set forth in RCW 46.61.502 (1) and (2), and (c) 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 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 0.10 or more, 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 if the arrest is the result of a blood test, 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. Within ten days after the notice has been given, the person may, in writing, request a formal hearing as provided by subsection (8) of this section. If such request is made by mail it must be postmarked within ten days after the notice has been given;

(d) Issue a temporary license to be effective twelve hours after the time of arrest and valid for forty-five days from the date of 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 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;

(e) 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 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;

(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 0.10 or more; and

(iii) Any other information that the director may require by rule or regulation.

(7) The department of licensing, upon the receipt of a sworn report of the law enforcement officer 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 and that (a) the person had refused to submit to the test or tests upon the request of the law enforcement officer after being informed that refusal would result in the revocation of the person's privilege to drive, or (b) a test was administered and the results indicated that the alcohol concentration of the person's breath or blood was 0.10 or more, shall suspend, revoke, or deny the person's license or permit to drive or any nonresident operating privilege, such suspension, revocation, or denial to be effective forty-five days from the date of arrest or when sustained at a hearing pursuant to subsection (8) of this section, whichever occurs first.

(((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 the person's right to a hearing, specifying the steps he or she must take to obtain a hearing. Within fifteen days after the notice has been given, the person may, in writing, request a formal hearing.))

(8) Upon timely receipt of ((~~such~~)) a request for a formal hearing, 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, except that all or part of the hearing may, at the discretion of the department, be conducted by telephone or other electronic means. For the purposes of this section, the scope of ((~~such~~)) 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, whether the person was placed under arrest, and whether (a) 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 privilege to drive or, (b) if a test was 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 0.10 or more. The sworn report submitted by a law enforcement officer shall be 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, that the officer complied with the requirements of this section, and that the testing instrument was in proper working condition. ((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)~~)) (9) Failure of the person to request a hearing within the time limit established by subsection (6) of this section, or failure to attend or participate in such a hearing, constitutes a default and results in the loss of that person's right to a hearing.

(10) 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 suspension, revocation, or denial by the department in the manner provided in RCW 46.20.334. 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. 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:

(a) The petitioner is likely to prevail when the court finally disposes of the matter;

(b) Without relief the petitioner will suffer irreparable injury; and

(c) The threat to the safety of persons on the public highways is not sufficiently serious to justify the department's action in the circumstances.

((~~(9)~~)) (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.

NEW SECTION. Sec. 8. A new section is added to chapter 46.20 RCW to read as follows:

(1) Pursuant to RCW 46.20.308, the department shall suspend, revoke, or deny the arrested person's license, permit to drive, driving privilege, or any nonresident privilege as follows:

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

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

(ii) For a second or subsequent refusal within five years preceding the date of refusal, revocation or denial for two years.

(b) In the case of an incident where a person has submitted to or been administered a test or tests indicating that the alcohol concentration of the person's breath or blood was 0.10 or more:

(i) For a first incident within five years, where there has been no previous conviction of RCW 46.61.502 or 46.61.504 within the five-year period preceding the current incident, suspension or denial until the person reaches age nineteen or for ninety days, whichever is longer;

(ii) For a second incident within five years, revocation or denial for one year. A previous conviction under RCW 46.61.502 or 46.61.504 within the five-year period preceding the current incident, that did not result in a suspension or denial under this subsection, shall be considered a previous incident for purposes of this subsection;

(iii) For a third or subsequent incident within five years, revocation or denial for two years. Previous convictions under RCW 46.61.502, 46.61.504, 46.61.520, or 46.61.522 within the five-year period preceding the current incident, that did not result in a suspension, revocation, or denial under this subsection, shall be considered previous incidents for purposes of this subsection.

(2) The department shall stay the suspension, revocation, or denial action pursuant to this section against any person, for whom it receives evidence of a court order for deferred prosecution, in accordance with chapter 10.05 RCW. The stay shall remain in effect for the term of the order: PROVIDED, That the department shall remove the stay upon receipt of evidence of new charges in violation of RCW 46.20.308 or that the terms of the deferred prosecution order have been violated.

(3) A diagnostic evaluation and treatment recommendation shall be prepared by an alcoholism agency approved by the department of social and health services or a qualified probation department approved by the department of social and health services. A copy of the report shall be forwarded to the department of licensing. 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's eligibility for licensing based upon the report provided by an approved alcoholism agency or probation department and shall deny reinstatement until enrollment and participation in an approved program has been established and the person is otherwise qualified.

Sec. 9. RCW 46.20.311 and 1990 c 250 s 45 are each 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 or driving privilege 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 until the person gives and thereafter maintains proof of financial responsibility for the future as provided in chapter 46.29 RCW. The department shall not issue to the person a new, duplicate, or renewal license until the person pays a reissue fee of twenty dollars. If the suspension is the result of a violation of RCW 46.61.502 or 46.61.504, the reissue fee shall be ((~~fifty~~)) one hundred 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 the license or privilege to drive was revoked; (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; (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; or (f) after the expiration of the applicable revocation period provided by RCW 46.20.265. After the expiration of the appropriate period, the person may make application for a new license as provided by law together with a reissue 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 reissue fee shall be ((~~fifty~~)) one hundred dollars. Except for a revocation under RCW 46.20.265, 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. For a revocation under RCW 46.20.265, the department shall not issue a new license unless it is satisfied after investigation of the driving ability of the person that it will be safe to grant that person the privilege of driving a motor vehicle on the public highways.

(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 department shall not issue to the person any new or renewal license until the person pays a reissue 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 or tests of the driver's breath or blood alcohol content, the reissue fee shall be ((~~fifty~~)) one hundred dollars.

Sec. 10. RCW 46.20.311 and 1993 c ... s 9 (section 9 of this act) are each 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, or section 8 of this act. Except for a suspension under section 8(1)(b)(i) of this act, whenever the license or driving privilege 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 ((~~or 46.20.308~~)), the suspension shall remain in effect until the person gives and thereafter maintains proof of financial responsibility for the future as provided in chapter 46.29 RCW. The department shall not issue to the person a new, duplicate, or renewal license until the person pays a reissue fee of twenty dollars. If the suspension is the result of a violation of RCW 46.61.502 or 46.61.504 or was imposed under RCW 46.20.308, the reissue fee shall be one hundred dollars. If the suspension was imposed under section 8(1)(b)(i) of this act, the suspension shall remain in effect and the department shall not issue any new, duplicate, or renewal license until the person pays a reinstatement fee of one hundred 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 the license or privilege to drive was revoked; (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; (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; or (f))) the applicable revocation period provided by section 8 of this act; or (e) after the expiration of the applicable revocation period provided by RCW 46.20.265. After the expiration of the appropriate period, the person may make application for a new license as provided by law together with a reissue 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 or was imposed under RCW 46.20.308, the reissue fee shall be one hundred dollars. Except for a revocation under RCW 46.20.265, 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. For a revocation under RCW 46.20.265, the department shall not issue a new license unless it is satisfied after investigation of the driving ability of the person that it will be safe to grant that person the privilege of driving a motor vehicle on the public highways.

Sec. 11. RCW 46.20.391 and 1985 c 407 s 5 are each amended to read as follows:

(1) Any person licensed under this chapter whose driving privilege has been suspended under section 8(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 section 8(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 8(1)(b)(i) 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, unless the suspension was imposed under section 8(1)(b)(i) of this act.

(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 RCW 46.20.308 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, and continues with the same force and effect as any suspension or revocation under this title.

NEW SECTION. Sec. 12. A new section is added to chapter 46.20 RCW to read as follows:

(1) Any person licensed under this chapter or any nonresident granted the privilege of driving a motor vehicle on the highways of this state, whose driver's license or driving privilege has been suspended or revoked, other than for vehicular homicide, vehicular assault, or under section 8(1)(a) of this act, or for a physical or mental disability that would affect that person's ability to operate a motor vehicle with safety upon the highways, may submit to the department an application for a provisional driver's license for purposes of participation in an alcohol or drug abuse treatment program approved by the department of social and health services. The department, upon receipt of the fee prescribed by this section and upon determining that the applicant is engaged in a treatment program approved by the department of social and health services that makes it essential that the applicant operate a motor vehicle, may issue a provisional driver's license. No person may petition for, and the department shall not issue, a provisional driver's license that is effective during the first thirty days of any suspension or revocation imposed under RCW 46.61.515 or section 8 of this act.

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

(a) The applicant is engaged in a program of treatment that makes it essential that he or she operate a motor vehicle; and

(b) The applicant files satisfactory proof of financial responsibility pursuant to chapter 46.29 RCW, unless the suspension was imposed under section 8(1)(b)(i) of this act; and

(c) The applicant pays to the department a treatment assessment fee of twenty-five dollars, such fee to be deposited in a special sober or suspended account, within the department of social and health services, to be administered by the division of alcohol and substance abuse, to be used to pay the cost of the diagnostic evaluation or assessment required under section 8(2) of this act for indigent or low-income individuals.

(3) In issuing a provisional driver's license under this section, the department shall set forth in detail the specific hours of the day during which the person may drive to and from his or her place of treatment; the days of the week during which the license may be used; the general routes over which the person may travel; and the expiration date of the license, such date to correspond to the ending date of any suspension or revocation of the person's driver's license or driving privilege, or the date the person's treatment program is to be concluded, whichever occurs first. These restrictions shall be prepared in written form by the department, such document to be carried in the vehicle at all times and presented to a law enforcement officer under the same terms as the provisional driver's license. Any violation of the restrictions constitutes a violation of RCW 46.20.342 and subjects the person to all procedures and penalties therefor.

(4) The department shall cancel a provisional driver's license upon receipt of notice that the holder thereof has been convicted of operating a motor vehicle in violation of its restrictions, or of an offense that pursuant to this chapter would warrant suspension or revocation of a regular driver's license, or upon the recommendation of a treatment agency for nonparticipation in a treatment program. The cancellation is effective as of the date of the conviction, or the date a recommendation is accepted from a treatment agency, and continues with the same force and effect as any suspension or revocation under this title.

Sec. 13. RCW 46.61.515 and 1985 c 352 s 1 are each amended to read as follows:

(1) Every person who is convicted of a violation of RCW 46.61.502 or 46.61.504 shall be punished by imprisonment for not less than twenty-four consecutive hours nor more than one year, and by a fine of not less than two hundred fifty dollars and not more than one thousand dollars. Unless the judge finds the person to be indigent, two hundred fifty dollars of the fine shall not be suspended or deferred. Twenty-four consecutive hours of the jail sentence shall not be suspended or deferred unless the judge finds that the imposition of the jail sentence will pose a risk to the defendant's physical or mental well-being. Whenever the mandatory jail sentence is suspended or deferred, the judge must state, in writing, the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based. The court may impose conditions of probation that may include nonrepetition, alcohol or drug treatment, supervised probation, or other conditions that may be appropriate. The convicted person shall, in addition, be required to complete a course in an alcohol information school approved by the department of social and health services or more intensive treatment in a program approved by the department of social and health services, as determined by the court. A diagnostic evaluation and treatment recommendation shall be prepared under the direction of the court by an alcoholism agency approved by the department of social and health services or a qualified probation department approved by the department of social and health services. A copy of the report shall be forwarded to the department of licensing. Based on the diagnostic evaluation, the court shall determine whether the convicted person shall be required to complete a course in an alcohol information school approved by the department of social and health services or more intensive treatment in a program approved by the department of social and health services. Standards for approval for alcohol treatment programs shall be prescribed by rule under the administrative procedure act, chapter 34.05 RCW. The courts shall periodically review the costs of alcohol information schools and treatment programs within their jurisdictions.

(2) On a second or subsequent conviction for driving or being in physical control of a motor vehicle while under the influence of intoxicating liquor or drugs within a five-year period a person shall be punished by imprisonment for not less than seven days nor more than one year and by a fine of not less than five hundred dollars and not more than two thousand dollars. District courts and courts organized under chapter 35.20 RCW are authorized to impose such fine. Unless the judge finds the person to be indigent, five hundred dollars of the fine shall not be suspended or deferred. The jail sentence shall not be suspended or deferred unless the judge finds that the imposition of the jail sentence will pose a risk to the defendant's physical or mental well-being. Whenever the mandatory jail sentence is suspended or deferred, the judge must state, in writing, the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based. If, at the time of a second or subsequent conviction, the driver is without a license or permit because of a previous suspension or revocation, the minimum mandatory sentence shall be ninety days in jail and a two hundred dollar fine. The penalty so imposed shall not be suspended or deferred. The person shall, in addition, be required to complete a diagnostic evaluation by an alcoholism agency approved by the department of social and health services or a qualified probation department approved by the department of social and health services. The report shall be forwarded to the department of licensing. If the person is found to have an alcohol or drug problem requiring treatment, the person shall complete treatment at an approved alcoholism treatment facility or approved drug treatment center.

In addition to any nonsuspendable and nondeferrable jail sentence required by this subsection, the court shall sentence a person to a term of imprisonment not exceeding one hundred eighty days and shall suspend but shall not defer the sentence for a period not exceeding two years. The suspension of the sentence may be conditioned upon nonrepetition, 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 suspension during the suspension period.

(3) The license or permit to drive or any nonresident privilege of any person convicted of driving or being in physical control of a motor vehicle while under the influence of intoxicating liquor or drugs shall:

(a) On the first conviction under either offense, where there has been no previous suspension or denial imposed under section 8(1)(b) of this act for the incident upon which the conviction is based, or where there has been no previous incident resulting in a suspension, revocation, or denial under section 8(1)(b) of this act within the five-year period preceding the current conviction, be suspended by the department until the person reaches age nineteen or for ninety days, whichever is longer. The department of licensing shall determine the person's eligibility for licensing based upon the reports provided by the designated alcoholism agency, drug treatment center, or probation department and shall deny reinstatement until enrollment and participation in an approved program has been established and the person is otherwise qualified;

(b) On a second conviction under either offense within a five-year period, where there has been no previous revocation or denial imposed under section 8(1)(b) of this act for the incident upon which the conviction is based, be revoked by the department for one year. A previous incident resulting in a suspension, revocation, or denial under section 8(1)(b) of this act within the five-year period preceding the current conviction shall be considered a previous conviction for purposes of this subsection. The department of licensing shall determine the person's eligibility for licensing based upon the reports provided by the designated alcoholism agency, drug treatment center, or probation department and shall deny reinstatement until satisfactory progress in an approved program has been established and the person is otherwise qualified;

(c) On a third or subsequent conviction of driving or being in physical control of a motor vehicle while under the influence of intoxicating liquor or drugs, vehicular homicide, or vehicular assault, or any combination thereof within a five-year period, where there has been no previous revocation or denial imposed under section 8(1)(b) of this act for the incident upon which the conviction is based, be revoked by the department for two years. Previous incidents resulting in suspension, revocation, or denial under section 8(1)(b) of this act within the five-year period preceding the current conviction shall be considered previous convictions for purposes of this subsection.

(4) In any case provided for in this section, where a driver's license is to be revoked or suspended, the revocation or suspension shall be stayed and shall not take effect until after the determination of any appeal from the conviction which may lawfully be taken, but in case the conviction is sustained on appeal the revocation or suspension takes effect as of the date that the conviction becomes effective for other purposes.

Sec. 14. RCW 46.68.060 and 1969 c 99 s 11 are each amended to read as follows:

(1) There is hereby created in the state treasury a fund to be known as the highway safety fund to the credit of which shall be deposited all moneys directed by law to be deposited therein. This fund shall be used for carrying out the provisions of law relating to driver licensing, driver improvement, financial responsibility, cost of furnishing abstracts of driving records ((~~and~~)), maintaining ((~~such~~)) the case records((~~, and~~)) necessary to carry out the purposes set forth in RCW 43.59.010, and as otherwise provided in subsection (2) of this section.

(2) The sum of ten dollars shall be paid from the highway safety fund to law enforcement agencies for each reissue fee collected under RCW 46.20.311 due to a suspension or revocation arising from an arrest under RCW 46.61.502 or 46.61.504 as reimbursement for the required administrative procedures.

NEW SECTION. Sec. 15. The traffic safety commission shall undertake a study of the effectiveness of this act and shall report its finding to the governor and the appropriate legislative committees within thirty months of the effective date of this section.

NEW SECTION. Sec. 16. 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.

NEW SECTION. Sec. 17. The department of licensing may adopt rules necessary to carry out this act.

NEW SECTION. Sec. 18. Section 9 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately. Sections 3 through 8 and 10 through 17 of this act shall take effect July 1, 1994. The director of licensing may immediately take such steps as are necessary to insure that all sections of this act are implemented on their respective effective dates.