BP BHEAD INT H

AN ACT Relating to driving while under the influence of intoxicating liquor or drugs; amending RCW 46.12.270; adding new sections to chapter 46.61 RCW; adding new sections to chapter 46.12 RCW; and prescribing penalties.

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 vehicle driven by or under the actual physical control of a person in violation of RCW 46.61.502 or 46.61.504 is, upon the conviction of that person when that conviction is the second or subsequent conviction for a violation of RCW 46.61.502 or 46.61.504 within a five-year period, subject to seizure and forfeiture and no property right exists in that vehicle, except that:

(a) A vehicle used by a person as a common carrier in the transaction of business as a common carrier is not subject to forfeiture under this section unless it appears that the owner or other person in charge of the vehicle is a consenting party or privy to a violation of RCW 46.61.502 or 46.61.504;

(b) A vehicle is not subject to forfeiture under this section by reason of a violation of RCW 46.61.502 or 46.61.504 established by the owner of the vehicle to have been committed without the owner's knowledge or consent;

(c) A forfeiture of a vehicle encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the violation of RCW 46.61.502 or 46.61.504.

(2) 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.

(3) A seizure under subsection (2) 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.

(4) 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 forfeited. However, the community property interest in the seized vehicle of a person whose spouse committed a violation giving rise to seizure of the vehicle is not forfeited if the person did not consent to or participate in the violation.

(5) 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 must be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer's designee, except that a 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 must 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 must be done in accordance with Title 34 RCW. In a court hearing between two or more claimants to the vehicle involved, the prevailing party is entitled to a judgment for costs and reasonable attorneys' fees. The burden of producing evidence is 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 chief law enforcement officer, of the seizing agency, the chief law enforcement officer's designee, or the court that the claimant neither knew of nor consented to the violation leading to seizure and is the present lawful owner or is lawfully entitled to possession of the vehicle.

(6) 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.

(7) 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.

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

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

(10) 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.

(11) 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. The treasurer shall deposit these funds in the drug enforcement and education account under RCW 69.50.520.

(12) 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.

(13) 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 use, 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.

NEW SECTION. Sec. 2. A new section is added to chapter 46.61 RCW to read as follows:

(1) Whenever a person is charged with a violation of RCW 46.61.502 or 46.61.504 and that person has been previously convicted for a violation of RCW 46.61.502 or 46.61.504 within a five-year period, the court shall instruct the person charged of the provisions of section 4 of this act and shall immediately forward notice of the charge to the director.

(2) Upon the conviction or acquittal of the person charged or if a pending charge is otherwise terminated, the court shall immediately forward notice of the termination of charge to the director.

NEW SECTION. Sec. 3. A new section is added to chapter 46.12 RCW to read as follows:

Upon receiving notice of a charge under section 2 of this act, the director shall withhold the issuance of a certificate of ownership on a vehicle subject to section 4 of this act unless the applicant is included in the exceptions listed in that section or until receiving notice of termination of the charge under section 2 of this act.

NEW SECTION. Sec. 4. A new section is added to chapter 46.12 RCW to read as follows:

It is unlawful to convey, sell, or transfer the ownership of a motor vehicle that was driven by or under the actual physical control of a person previously convicted for a violation of RCW 46.61.502 or 46.61.504 within a five-year period and presently charged with a violation of RCW 46.61.502 or 46.61.504, except that:

(1) 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; and

(2) A leased vehicle may be transferred to the lessor or to a person designated by the lessor.

Sec. 5. RCW 46.12.270 and 1969 ex.s. c 125 s 3 are each amended to read as follows:

Any person violating ((~~the provisions of~~)) RCW 46.12.250 ((or)), 46.12.260 ((~~shall be~~)), or section 4 of this act is guilty of a misdemeanor and shall be punished by a fine of not more than two hundred fifty dollars or by imprisonment in a county jail for not more than ninety days.