AN
ACT Relating to penalties for driving under the influence; amending RCW
46.61.5058, 46.01.260, 46.20.285, 46.61.503, 46.20.308, 46.20.3101, and
46.20.391; reenacting and amending RCW 46.61.5055; adding a new section to
chapter 46.61 RCW; creating new sections; prescribing penalties; and providing
an effective date.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
46.61.5055 and 1997 c 229 s 11 and 1997 c 66 s 14 are each reenacted and
amended to read as follows:
(1)
A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who
has no prior offense within ((five)) 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 one year. 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; 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; and
(iii)
By suspension of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of ninety days. The period of
license, permit, or privilege suspension may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall suspend the offender's
license, permit, or privilege; 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 one year. Two
consecutive days 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; 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; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of one year. The period of
license, permit, or privilege suspension may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall suspend the offender's
license, permit, or privilege.
(2)
A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who
has one prior offense within ((five)) 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 days nor more than one year. Thirty
days 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; 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; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of two years. The period of
license, permit, or privilege revocation may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall revoke the offender's
license, permit, or privilege; 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 days nor more than one year.
Forty-five days 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; 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; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of nine hundred days. The
period of license, permit, or privilege revocation may not be suspended. The
court shall notify the department of licensing of the conviction, and upon
receiving notification of the conviction the department shall revoke the
offender's license, permit, or privilege.
(3)
A person who is convicted of a violation of RCW 46.61.502 or 46.61.504 and who
has two or more prior offenses within ((five)) 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 days nor more than one year. Ninety
days 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; 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; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of three years. The period of
license, permit, or privilege revocation may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall revoke the offender's
license, permit, or privilege; 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 days nor more than one
year. One hundred twenty days 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; 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; and
(iii)
By revocation of the offender's license or permit to drive, or suspension of
any nonresident privilege to drive, for a period of four years. The period of
license, permit, or privilege revocation may not be suspended. The court shall
notify the department of licensing of the conviction, and upon receiving
notification of the conviction the department shall revoke the offender's
license, permit, or privilege.
(4)
In exercising its discretion in setting penalties within the limits allowed by
this section, the court shall particularly consider whether the person's
driving at the time of the offense was responsible for injury or damage to
another or another's property.
(5)
An offender punishable under this section is subject to the alcohol assessment
and treatment provisions of RCW 46.61.5056.
(6)
After expiration of any period of suspension or revocation 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.
(7)(a)
In addition to any nonsuspendable and nondeferrable jail sentence required by
this section, whenever the court imposes less than one year in jail, the court
shall also suspend but shall not defer a period of confinement for a period not
exceeding two 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 financial responsibility for the future; (ii) not
driving a motor vehicle within this state while having an alcohol concentration
of 0.08 or more within two hours after driving; and (iii) not refusing to
submit to a test of his or her breath or blood to determine alcohol
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. The court may impose conditions of probation that include
nonrepetition, installation of an ignition interlock or other biological or
technical 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) and (ii)
or (a)(i) and (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.
(8)(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;
(iv)
A conviction for 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 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; or
(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.
(b)
"Within ((five)) seven years" means that the arrest for
a prior offense occurred within ((five)) seven years of the
arrest for the current offense.
Sec.
2. RCW
46.61.5058 and 1995 c 332 s 6 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 46.61.502 or 46.61.504 or any similar
municipal ordinance, if such person has a prior offense within ((five)) 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 46.61.502 or 46.61.504 or any
similar municipal ordinance where the person convicted has a prior offense
within ((five)) 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.
(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 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 public safety and education account.
(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.
3. RCW
46.01.260 and 1997 c 66 s 11 are each amended to read as follows:
(1)
Except as provided in subsection (2) of this section, the director, in his or
her discretion, may destroy applications for vehicle licenses, copies of
vehicle licenses issued, applications for drivers' licenses, copies of issued
drivers' licenses, certificates of title and registration or other documents,
records or supporting papers on file in his or her office which have been
microfilmed or photographed or are more than five years old. If the
applications for vehicle licenses are renewal applications, the director may
destroy such applications when the computer record thereof has been updated.
(2)(a)
The director shall not destroy records of convictions or adjudications of RCW
46.61.520 and 46.61.522 or records of deferred prosecutions granted under RCW
10.05.120 and shall maintain such records permanently on file.
(b)
The director shall not, within ((ten)) fifteen years from the
date of conviction((,)) or adjudication((, or entry of
deferred prosecution)), destroy records of the following:
(i)
Convictions or adjudications of the following offenses: RCW 46.61.502 or
46.61.504; or
(ii)
If the offense was originally charged as one of the offenses designated in (a)
or (b)(i) of this subsection, convictions or adjudications of the following
offenses: RCW 46.61.500 or 46.61.5249 or any other violation that was
originally charged as one of the offenses designated in (a) or (b)(i) of this
subsection((; or
(iii)
Deferred prosecutions granted under RCW 10.05.120)).
(c)
For purposes of RCW 46.52.100 and 46.52.130, offenses subject to this
subsection shall be considered "alcohol-related" offenses.
Sec.
4. RCW
46.20.285 and 1996 c 199 s 5 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. The
revocation period shall be tolled during any period of total confinement for
the offense;
(2)
Vehicular assault. The revocation period shall be tolled during any period of
total confinement for the offense;
(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)) for the period
prescribed in RCW 46.61.5055;
(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.
Sec.
5. RCW
46.61.503 and 1995 c 332 s 2 are each amended to read as follows:
(1)
Notwithstanding any other provision of this title, a person is guilty of
driving a motor vehicle after consuming alcohol if the person operates a motor
vehicle within this state and the person:
(a)
Is under the age of twenty-one;
(b)
Has, within two hours after operating the motor vehicle, an alcohol
concentration of ((0.02 or more)) at least 0.02 but less than the
concentration specified in RCW 46.61.502, as shown by analysis of the
person's breath or blood made under RCW 46.61.506.
(2)
It is an affirmative defense to a violation of subsection (1) 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 ((0.02 or more)) in
violation of subsection (1) of this section within two hours after
driving. The court shall not admit evidence of this defense unless the
defendant notifies the prosecution prior to the earlier of: (a) Seven days
prior to trial; or (b) the omnibus or pretrial hearing in the case of the
defendant's intent to assert the affirmative defense.
(3)
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 0.02 or more)) in
violation of subsection (1) of this section.
(4)
A violation of this section is a misdemeanor.
*NEW
SECTION. Sec. 6.
A new section is added to chapter 46.61 RCW to read as follows:
(1)
A defendant who is arrested for an offense involving driving while under the
influence as defined in RCW 46.61.502, driving under age twenty-one after
consuming alcohol as defined in RCW 46.61.503, or being in physical control of
a vehicle while under the influence as defined in RCW 46.61.504, shall be
required to appear in person before a magistrate within one judicial day after
the arrest.
(2)
A defendant who is charged by citation, complaint, or information with an
offense involving driving while under the influence as defined in RCW
46.61.502, driving under age twenty-one after consuming alcohol as defined in
RCW 46.61.503, or being in physical control of a vehicle while under the
influence as defined in RCW 46.61.504, and who is not arrested, shall appear in
court for arraignment in person as soon as practicable, but in no event later
than fourteen days after the next day on which court is in session following
the issuance of the citation or the filing of the complaint or information.
(3)
At the time of an appearance required by this section, the court shall
determine the necessity of imposing conditions of pretrial release according to
the procedures established by court rule for a preliminary appearance or an
arraignment.
(4)
Appearances required by this section are mandatory and may not be waived.
*Sec. 6 was vetoed. See message at end of chapter.
Sec.
7. RCW
46.20.308 and 1995 c 332 s 1 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 alcohol
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.
(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 the person to have been
driving or in actual physical control of a motor vehicle while having alcohol
in a concentration ((of 0.02 or more)) 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 in which a breath testing
instrument is not present 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(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 license, permit, or privilege to drive will be revoked or denied if
he or she refuses to submit to the test;
(b)
His or her license, permit, or privilege to drive will be suspended, revoked,
denied, or placed in probationary status if the test is administered and the
test indicates the alcohol concentration of the person's breath or blood is
0.10 or more, in the case of a person age twenty-one or over, or ((0.02 or
more)) in violation of RCW 46.61.502, 46.61.503, or 46.61.504 in the
case of a person under age twenty-one; 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 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 0.10 or more if the person is age twenty-one
or over, or is ((0.02 or more)) in violation of RCW 46.61.502,
46.61.503, or 46.61.504 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, deny, or place in probationary status 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;
(c)
Mark the person's Washington state driver's license or permit to drive, if any,
in a manner authorized by the department;
(d)
Serve notice in writing that the 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)
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 concentration ((of
0.02 or more)) 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 0.10 or more if the person is age twenty-one
or over, or was ((0.02 or more)) in violation of RCW 46.61.502,
46.61.503, or 46.61.504 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) of this
section, shall suspend, revoke, deny, or place in probationary status the
person's license, permit, or privilege to drive or any nonresident operating
privilege, as provided in RCW 46.20.3101, such suspension, revocation, denial,
or placement in probationary status 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 thirty days after the notice has been given, request in writing a formal
hearing before the department. The person shall pay a fee of one hundred
dollars as part of the request. If the request is mailed, it must be postmarked
within thirty days after receipt of the notification. Upon timely receipt of
such a request for a formal hearing, including receipt of the required one
hundred dollar fee, the department shall afford the person an opportunity for a
hearing. 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)) in violation
of RCW 46.61.503 and 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 0.10 or more if the
person was age twenty-one or over at the time of the arrest, or was ((0.02
or more)) in violation of RCW 46.61.502, 46.61.503, or 46.61.504 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)) in
violation of RCW 46.61.503 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, denial, or placement in probationary status either be rescinded or
sustained.
(9)
If the suspension, revocation, denial, or placement in probationary status is
sustained after such a hearing, the person whose license, privilege, or permit
is suspended, revoked, denied, or placed in probationary status 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. 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, denial, or placement in probationary status. 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, denial, or
placement in probationary status 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 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, denial, or placement in probationary status it may impose
conditions on such stay.
(10)
If a person whose driver's license, permit, or privilege to drive has been or
will be suspended, revoked, denied, or placed in probationary status under
subsection (7) of this section, other than as a result of a breath test
refusal, and who has not committed an offense within the last five years 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, the court may direct the department to stay any actual or
proposed suspension, revocation, denial, or placement in probationary status
for at least forty-five days but not more than ninety days. If the court stays
the suspension, revocation, denial, or placement in probationary status, 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.
A
suspension, revocation, or denial imposed under this section, other than as a
result of a breath test refusal, shall be stayed if the person is accepted for
deferred prosecution as provided in chapter 10.05 RCW for the incident upon
which the suspension, revocation, or denial is based. If the deferred prosecution
is terminated, the stay shall be lifted and the suspension, revocation, or
denial reinstated. If the deferred prosecution is completed, the stay shall be
lifted and the suspension, revocation, or denial canceled.
(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.
8. RCW
46.20.3101 and 1995 c 332 s 3 are each amended to read as follows:
Pursuant
to RCW 46.20.308, the department shall suspend, revoke, or deny the arrested
person's license, permit, or privilege to drive as follows:
(1)
In the case of a person who has refused a test or tests:
(a)
For a first refusal within ((five)) seven years, where there has
not been a previous incident within ((five)) seven years that
resulted in administrative action under this section, revocation or denial for
one year;
(b)
For a second or subsequent refusal within ((five)) seven years,
or for a first refusal where there has been one or more previous incidents
within ((five)) seven years that have resulted in administrative
action under this section, revocation or denial for two years or until the
person reaches age twenty-one, whichever is longer. A revocation imposed under
this subsection (1)(b) shall run consecutively to the period of any suspension,
revocation, or denial imposed pursuant to a criminal conviction arising out of
the same incident.
(2)
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:
(a)
For a first incident within ((five)) seven years, where there has
not been a previous incident within ((five)) seven years that
resulted in administrative action under this section, placement in probationary
status as provided in RCW 46.20.355;
(b)
For a second or subsequent incident within ((five)) seven years,
revocation or denial for two years.
(3)
In the case of an incident where a person under age twenty-one has submitted to
or been administered a test or tests indicating that the alcohol concentration
of the person's breath or blood was ((0.02 or more)) in violation of
RCW 46.61.503:
(a)
For a first incident within ((five)) seven years, suspension or
denial for ninety days;
(b)
For a second or subsequent incident within ((five)) seven years,
revocation or denial for one year or until the person reaches age twenty-one,
whichever is longer.
Sec.
9. RCW
46.20.391 and 1995 c 332 s 12 are each amended to read as follows:
(1)
Any person licensed under this chapter 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 for a violation of RCW 46.61.502 or
46.61.504. 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 date of the offense that gave rise to
the present conviction, the applicant has not committed any offense relating to
motor vehicles for which suspension or revocation of a driver's license is
mandatory; and
(b)
Within ((five)) seven years immediately preceding the date of the
offense that gave rise to the present conviction, the applicant has not
committed any of the following offenses: (i) Driving or being in actual
physical control of a motor vehicle while under the influence of intoxicating
liquor; (ii) vehicular homicide under RCW 46.61.520; or (iii) vehicular assault
under RCW 46.61.522; 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 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. 10. If
specific funding for the purposes of this act, referencing this act by bill or
chapter number, is not provided by June 30, 1998, in the omnibus appropriations
act, this act is null and void.
*NEW
SECTION. Sec. 11.
If this act mandates an increased level of
service by local governments, the local government may, under RCW 43.135.060
and chapter 4.92 RCW, submit claims for reimbursement by the legislature. The
claims shall be subject to verification by the office of financial management.
*Sec. 11 was vetoed. See message at end of chapter.
NEW
SECTION. Sec. 12. This
act takes effect January 1, 1999.
