BILL REQ. #: H-1121.3
| State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/28/11. Referred to Committee on Judiciary.
AN ACT Relating to accountability for persons driving or being in physical control of a vehicle while under the influence of intoxicating liquor or any drug; amending RCW 46.20.385, 46.61.502, 46.61.504, 46.61.506, 46.61.500, 46.61.5249, 46.20.720, 46.61.5055, 10.05.140, 10.05.010, and 9.94A.533; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 46.20.385 and 2010 c 269 s 1 are each amended to read
as follows:
(1)(a) Beginning January 1, 2009, any person licensed under this
chapter who is convicted of a violation of RCW 46.61.502 or 46.61.504
or an equivalent local or out-of-state statute or ordinance, or a
violation of RCW 46.61.520(1)(a) or 46.61.522(1)(b), or who has had or
will have his or her license suspended, revoked, or denied under RCW
46.20.3101, may submit to the department an application for an ignition
interlock driver's license. The department, upon receipt of the
prescribed fee and upon determining that the petitioner is eligible to
receive the license, may issue an ignition interlock driver's license.
(b) A person may apply for an ignition interlock driver's license
anytime, including immediately after receiving the notices under RCW
46.20.308 or after his or her license is suspended, revoked, or denied.
A person receiving an ignition interlock driver's license waives his or
her right to a hearing or appeal under RCW 46.20.308.
(c) An applicant under this subsection shall provide proof to the
satisfaction of the department that a functioning ignition interlock
device has been installed on all vehicles operated by the person.
(i) The department shall require the person to maintain the device
on all vehicles operated by the person and shall restrict the person to
operating only vehicles equipped with the device, for the remainder of
the period of suspension, revocation, or denial. The installation of
an ignition interlock device is not necessary on vehicles owned,
leased, or rented by a person's employer and on those vehicles whose
care and/or maintenance is the temporary responsibility of the
employer, and driven at the direction of a person's employer as a
requirement of employment during working hours. The person must
provide the department with a declaration pursuant to RCW 9A.72.085
from his or her employer stating that the person's employment requires
the person to operate a vehicle owned by the employer or other persons
during working hours.
(ii) Subject to any periodic renewal requirements established by
the department under this section and subject to any applicable
compliance requirements under this chapter or other law, an ignition
interlock driver's license granted upon a suspension or revocation
under RCW 46.61.5055 or 46.20.3101 extends through the remaining
portion of any concurrent or consecutive suspension or revocation that
may be imposed as the result of administrative action and criminal
conviction arising out of the same incident.
(iii) The time period during which the person is licensed under
this section shall apply on a day-for-day basis toward satisfying the
period of time the ignition interlock device restriction is required
under RCW 46.20.720 and 46.61.5055. Beginning with incidents occurring
on or after the effective date of this section, when calculating the
period of time for the restriction under RCW 46.20.720(3), the
department must also give the person a day-for-day credit for the time
period, beginning from the date of the incident, during which the
person kept an ignition interlock device installed on all vehicles the
person operates. For the purposes of this subsection (1)(c)(iii), the
term "all vehicles" does not include vehicles that would be subject to
the employer exception under RCW 46.20.720(3).
(2) An applicant for an ignition interlock driver's license who
qualifies under subsection (1) of this section is eligible to receive
a license only if the applicant files satisfactory proof of financial
responsibility under chapter 46.29 RCW.
(3) Upon receipt of evidence that a holder of an ignition interlock
driver's license granted under this subsection no longer has a
functioning ignition interlock device installed on all vehicles
operated by the driver, the director shall give written notice by
first-class mail to the driver that the ignition interlock driver's
license shall be canceled. If at any time before the cancellation goes
into effect the driver submits evidence that a functioning ignition
interlock device has been installed on all vehicles operated by the
driver, the cancellation shall be stayed. If the cancellation becomes
effective, the driver may obtain, at no additional charge, a new
ignition interlock driver's license upon submittal of evidence that a
functioning ignition interlock device has been installed on all
vehicles operated by the driver.
(4) A person aggrieved by the decision of the department on the
application for an ignition interlock driver's license may request a
hearing as provided by rule of the department.
(5) The director shall cancel an ignition interlock driver's
license after receiving notice that the holder thereof has been
convicted of operating a motor vehicle in violation of its
restrictions, no longer meets the eligibility requirements, or has been
convicted of or found to have committed a separate offense or any other
act or omission that under this chapter would warrant suspension or
revocation of a regular driver's license. The department must give
notice of the cancellation as provided under RCW 46.20.245. A person
whose ignition interlock driver's license has been canceled under this
section may reapply for a new ignition interlock driver's license if he
or she is otherwise qualified under this section and pays the fee
required under RCW 46.20.380.
(6)(a) Unless costs are waived by the ignition interlock company or
the person is indigent under RCW 10.101.010, the applicant shall pay
the cost of installing, removing, and leasing the ignition interlock
device and shall pay an additional fee of twenty dollars per month.
Payments shall be made directly to the ignition interlock company. The
company shall remit the additional twenty-dollar fee to the department.
(b) The department shall deposit the proceeds of the twenty-dollar
fee into the ignition interlock device revolving account. Expenditures
from the account may be used only to administer and operate the
ignition interlock device revolving account program. The department
shall adopt rules to provide monetary assistance according to greatest
need and when funds are available.
(7) The department shall adopt rules to implement ignition
interlock licensing. The department shall consult with the
administrative office of the courts, the state patrol, the Washington
association of sheriffs and police chiefs, ignition interlock
companies, and any other organization or entity the department deems
appropriate.
Sec. 2 RCW 46.61.502 and 2008 c 282 s 20 are each amended to read
as follows:
(1) A person is guilty of driving while under the influence of
intoxicating liquor or any drug if the person drives a vehicle within
this state:
(a) And the person has, within two hours after driving, an alcohol
concentration of 0.08 or higher as shown by analysis of the person's
breath or blood made under RCW 46.61.506; or
(b) The person has, within two hours after driving, a THC
concentration of eight or more nanograms per milliliter as shown by
analysis of the person's blood made under RCW 46.61.506; or
(c) While the person is under the influence of or affected by
intoxicating liquor or any drug; or
(((c))) (d) While the person is under the combined influence of or
affected by intoxicating liquor and any drug.
(2) The fact that a person charged with a violation of this section
is or has been entitled to use a drug under the laws of this state
shall not constitute a defense against a charge of violating this
section.
(3) It is an affirmative defense to a violation of subsection
(1)(a) of this section which the defendant must prove by a
preponderance of the evidence that the defendant consumed a sufficient
quantity of alcohol after the time of driving and before the
administration of an analysis of the person's breath or blood to cause
the defendant's alcohol concentration to be 0.08 or more within two
hours after driving. The court shall not admit evidence of this
defense unless the defendant notifies the prosecution prior to the
omnibus or pretrial hearing in the case of the defendant's intent to
assert the affirmative defense.
(4)(a) Analyses of blood or breath samples obtained more than two
hours after the alleged driving may be used as evidence that within two
hours of the alleged driving, a person had an alcohol concentration of
0.08 or more in violation of subsection (1)(a) of this section, and in
any case in which the analysis shows an alcohol concentration above
0.00 may be used as evidence that a person was under the influence of
or affected by intoxicating liquor or any drug in violation of
subsection (1)(((b) or)) (c) or (d) of this section.
(b) Analyses of blood samples that show a THC concentration of
above zero may be used as evidence that a person was under the
influence of or affected by a drug in violation of subsection (1)(c) or
(d) of this section. The presence of carboxy-THC in a person's blood
may not be used as evidence to establish a violation of subsection
(1)(b) of this section.
(5) Except as provided in subsection (6) of this section, a
violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or
chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has four or more prior offenses within ten years as
defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating
liquor or any drug, RCW 46.61.520(1)(a)((,));
(ii) Vehicular assault while under the influence of intoxicating
liquor or any drug, RCW 46.61.522(1)(b)((, or));
(iii) An out-of-state offense comparable to the offense specified
in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.504(6).
Sec. 3 RCW 46.61.504 and 2008 c 282 s 21 are each amended to read
as follows:
(1) A person is guilty of being in actual physical control of a
motor vehicle while under the influence of intoxicating liquor or any
drug if the person has actual physical control of a vehicle within this
state:
(a) And the person has, within two hours after being in actual
physical control of the vehicle, an alcohol concentration of 0.08 or
higher as shown by analysis of the person's breath or blood made under
RCW 46.61.506; or
(b) The person has, within two hours after being in actual physical
control of a vehicle, a THC concentration of eight or more nanograms
per milliliter as shown by analysis of the person's blood made under
RCW 46.61.506; or
(c) While the person is under the influence of or affected by
intoxicating liquor or any drug; or
(((c))) (d) While the person is under the combined influence of or
affected by intoxicating liquor and any drug.
(2) The fact that a person charged with a violation of this section
is or has been entitled to use a drug under the laws of this state does
not constitute a defense against any charge of violating this section.
No person may be convicted under this section if, prior to being
pursued by a law enforcement officer, the person has moved the vehicle
safely off the roadway.
(3) It is an affirmative defense to a violation of subsection
(1)(a) of this section which the defendant must prove by a
preponderance of the evidence that the defendant consumed a sufficient
quantity of alcohol after the time of being in actual physical control
of the vehicle and before the administration of an analysis of the
person's breath or blood to cause the defendant's alcohol concentration
to be 0.08 or more within two hours after being in such control. The
court shall not admit evidence of this defense unless the defendant
notifies the prosecution prior to the omnibus or pretrial hearing in
the case of the defendant's intent to assert the affirmative defense.
(4)(a) Analyses of blood or breath samples obtained more than two
hours after the alleged being in actual physical control of a vehicle
may be used as evidence that within two hours of the alleged being in
such control, a person had an alcohol concentration of 0.08 or more in
violation of subsection (1)(a) of this section, and in any case in
which the analysis shows an alcohol concentration above 0.00 may be
used as evidence that a person was under the influence of or affected
by intoxicating liquor or any drug in violation of subsection (1)(((b)
or)) (c) or (d) of this section.
(b) Analyses of blood samples that show a THC concentration of
above zero may be used as evidence that a person was under the
influence of or affected by a drug in violation of subsection (1)(c) or
(d) of this section. The presence of carboxy-THC in a person's blood
may not be used as evidence to establish a violation of subsection
(1)(b) of this section.
(5) Except as provided in subsection (6) of this section, a
violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or
chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has four or more prior offenses within ten years as
defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating
liquor or any drug, RCW 46.61.520(1)(a)((,));
(ii) Vehicular assault while under the influence of intoxicating
liquor or any drug, RCW 46.61.522(1)(b)((, or));
(iii) An out-of-state offense comparable to the offense specified
in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.502(6).
Sec. 4 RCW 46.61.506 and 2010 c 53 s 1 are each amended to read
as follows:
(1) Upon the trial of any civil or criminal action or proceeding
arising out of acts alleged to have been committed by any person while
driving or in actual physical control of a vehicle while under the
influence of intoxicating liquor or any drug, if the person's alcohol
concentration is less than 0.08 or the person's THC concentration is
less than eight nanograms per milliliter, it is evidence that may be
considered with other competent evidence in determining whether the
person was under the influence of intoxicating liquor or any drug.
(2)(a) The breath analysis shall be based upon grams of alcohol per
two hundred ten liters of breath.
(b) The blood analysis for THC shall be based upon nanograms per
milliliter of whole blood.
(c) The foregoing provisions of this section shall not be construed
as limiting the introduction of any other competent evidence bearing
upon the question whether the person was under the influence of
intoxicating liquor or any drug.
(3) Analysis of the person's blood or breath to be considered valid
under the provisions of this section or RCW 46.61.502 or 46.61.504
shall have been performed according to methods approved by the state
toxicologist and by an individual possessing a valid permit issued by
the state toxicologist for this purpose. The state toxicologist is
directed to approve satisfactory techniques or methods, to supervise
the examination of individuals to ascertain their qualifications and
competence to conduct such analyses, and to issue permits which shall
be subject to termination or revocation at the discretion of the state
toxicologist.
(4)(a) A breath test performed by any instrument approved by the
state toxicologist shall be admissible at trial or in an administrative
proceeding if the prosecution or department produces prima facie
evidence of the following:
(i) The person who performed the test was authorized to perform
such test by the state toxicologist;
(ii) The person being tested did not vomit or have anything to eat,
drink, or smoke for at least fifteen minutes prior to administration of
the test;
(iii) The person being tested did not have any foreign substances,
not to include dental work, fixed or removable, in his or her mouth at
the beginning of the fifteen-minute observation period;
(iv) Prior to the start of the test, the temperature of any liquid
simulator solution utilized as an external standard, as measured by a
thermometer approved of by the state toxicologist was thirty-four
degrees centigrade plus or minus 0.3 degrees centigrade;
(v) The internal standard test resulted in the message "verified";
(vi) The two breath samples agree to within plus or minus ten
percent of their mean to be determined by the method approved by the
state toxicologist;
(vii) The result of the test of the liquid simulator solution
external standard or dry gas external standard result did lie between
.072 to .088 inclusive; and
(viii) All blank tests gave results of .000.
(b) For purposes of this section, "prima facie evidence" is
evidence of sufficient circumstances that would support a logical and
reasonable inference of the facts sought to be proved. In assessing
whether there is sufficient evidence of the foundational facts, the
court or administrative tribunal is to assume the truth of the
prosecution's or department's evidence and all reasonable inferences
from it in a light most favorable to the prosecution or department.
(c) Nothing in this section shall be deemed to prevent the subject
of the test from challenging the reliability or accuracy of the test,
the reliability or functioning of the instrument, or any maintenance
procedures. Such challenges, however, shall not preclude the
admissibility of the test once the prosecution or department has made
a prima facie showing of the requirements contained in (a) of this
subsection. Instead, such challenges may be considered by the trier of
fact in determining what weight to give to the test result.
(5) When a blood test is administered under the provisions of RCW
46.20.308, the withdrawal of blood for the purpose of determining its
alcoholic or drug content may be performed only by a physician, a
registered nurse, a licensed practical nurse, a nursing assistant as
defined in chapter 18.88A RCW, a physician assistant as defined in
chapter 18.71A RCW, a first responder as defined in chapter 18.73 RCW,
an emergency medical technician as defined in chapter 18.73 RCW, a
health care assistant as defined in chapter 18.135 RCW, or any
technician trained in withdrawing blood. This limitation shall not
apply to the taking of breath specimens.
(6) The person tested may have a physician, or a qualified
technician, chemist, registered nurse, or other qualified person of his
or her own choosing administer one or more tests in addition to any
administered at the direction of a law enforcement officer. The test
will be admissible if the person establishes the general acceptability
of the testing technique or method. The failure or inability to obtain
an additional test by a person shall not preclude the admission of
evidence relating to the test or tests taken at the direction of a law
enforcement officer.
(7) Upon the request of the person who shall submit to a test or
tests at the request of a law enforcement officer, full information
concerning the test or tests shall be made available to him or her or
his or her attorney.
(8) The presence of carboxy-THC in a person's blood may not be used
as evidence to establish a violation of RCW 46.61.502(1)(b) or
46.61.504(1)(b).
Sec. 5 RCW 46.61.500 and 1990 c 291 s 1 are each amended to read
as follows:
(1) Any person who drives any vehicle in willful or wanton
disregard for the safety of persons or property is guilty of reckless
driving. Violation of the provisions of this section is a gross
misdemeanor punishable by imprisonment of not more than one year and by
a fine of not more than five thousand dollars.
(2) The license or permit to drive or any nonresident privilege of
any person convicted of reckless driving shall be suspended by the
department for not less than thirty days.
(3) A person convicted of reckless driving shall be required, under
RCW 46.20.720, to install an ignition interlock device on all vehicles
operated by the person if the conviction is the result of a charge that
was originally filed as a violation of RCW 46.61.502, 46.61.504, or
46.61.5249, or an equivalent local ordinance, or of RCW 46.61.520 or
46.61.522.
Sec. 6 RCW 46.61.5249 and 1997 c 66 s 4 are each amended to read
as follows:
(1)(a) A person is guilty of negligent driving in the first degree
if he or she operates a motor vehicle in a manner that is both
negligent and endangers or is likely to endanger any person or
property, and exhibits the effects of having consumed liquor or an
illegal drug.
(b) It is an affirmative defense to negligent driving in the first
degree by means of exhibiting the effects of having consumed an illegal
drug that must be proved by the defendant by a preponderance of the
evidence, that the driver has a valid prescription for the drug
consumed, and has been consuming it according to the prescription
directions and warnings.
(c) Negligent driving in the first degree is a misdemeanor.
(2) For the purposes of this section:
(a) "Negligent" means the failure to exercise ordinary care, and is
the doing of some act that a reasonably careful person would not do
under the same or similar circumstances or the failure to do something
that a reasonably careful person would do under the same or similar
circumstances.
(b) "Exhibiting the effects of having consumed liquor" means that
a person has the odor of liquor on his or her breath, or that by
speech, manner, appearance, behavior, lack of coordination, or
otherwise exhibits that he or she has consumed liquor, and either:
(i) Is in possession of or in close proximity to a container that
has or recently had liquor in it; or
(ii) Is shown by other evidence to have recently consumed liquor.
(c) "Exhibiting the effects of having consumed an illegal drug"
means that a person by speech, manner, appearance, behavior, lack of
coordination, or otherwise exhibits that he or she has consumed an
illegal drug and either:
(i) Is in possession of an illegal drug; or
(ii) Is shown by other evidence to have recently consumed an
illegal drug.
(d) "Illegal drug" means a controlled substance under chapter 69.50
RCW for which the driver does not have a valid prescription or that is
not being consumed in accordance with the prescription directions and
warnings, or a legend drug under chapter 69.41 RCW for which the driver
does not have a valid prescription or that is not being consumed in
accordance with the prescription directions and warnings.
(3) Any act prohibited by this section that also constitutes a
crime under any other law of this state may be the basis of prosecution
under such other law notwithstanding that it may also be the basis for
prosecution under this section.
(4) A person convicted of negligent driving in the first degree
shall be required, under RCW 46.20.720, to install an ignition
interlock device on all vehicles operated by the person.
Sec. 7 RCW 46.20.720 and 2010 c 269 s 3 are each amended to read
as follows:
(1) The court may order that after a period of suspension,
revocation, or denial of driving privileges, and for up to as long as
the court has jurisdiction, any person convicted of any offense
involving the use, consumption, or possession of alcohol while
operating a motor vehicle may drive only a motor vehicle equipped with
a functioning ignition interlock. The court shall establish a specific
calibration setting at which the interlock will prevent the vehicle
from being started. The court shall also establish the period of time
for which interlock use will be required.
(2) Under RCW 46.61.5055 and subject to the exceptions listed in
that statute, the court shall order any person convicted of a violation
of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to apply
for an ignition interlock driver's license from the department under
RCW 46.20.385 and to have a functioning ignition interlock device
installed on all motor vehicles operated by the person. The court
shall order any person participating in a deferred prosecution program
under RCW 10.05.020 for a violation of RCW 46.61.502 or 46.61.504 or an
equivalent local ordinance to have a functioning ignition interlock
device installed on all motor vehicles operated by the person.
(3) The department shall require that, after any applicable period
of suspension, revocation, or denial of driving privileges, a person
may drive only a motor vehicle equipped with a functioning ignition
interlock device if the person is convicted of a violation of RCW
46.61.502 or 46.61.504 or an equivalent local or out-of-state statute
or ordinance. The department shall require that a person may drive
only a motor vehicle equipped with a functioning ignition interlock
device if the person is convicted of a violation of RCW 46.61.5249 or
if the person is convicted of a violation of RCW 46.61.500 and the
conviction is the result of a charge that was originally filed as a
violation of RCW 46.61.502, 46.61.504, or 46.61.5249, or an equivalent
local ordinance, or of RCW 46.61.520 or 46.61.522.
The department may waive the requirement for the use of such a
device if it concludes that such devices are not reasonably available
in the local area. The installation of an ignition interlock device is
not necessary on vehicles owned, leased, or rented by a person's
employer and on those vehicles whose care and/or maintenance is the
temporary responsibility of the employer, and driven at the direction
of a person's employer as a requirement of employment during working
hours. The person must provide the department with a declaration
pursuant to RCW 9A.72.085 from his or her employer stating that the
person's employment requires the person to operate a vehicle owned by
the employer or other persons during working hours.
The ignition interlock device shall be calibrated to prevent the
motor vehicle from being started when the breath sample provided has an
alcohol concentration of 0.025 or more. Subject to the provisions of
subsections (4) and (5) of this section, the period of time of the
restriction will be no less than:
(a) For a person who has not previously been restricted under this
section, a period of one year;
(b) For a person who has previously been restricted under (a) of
this subsection, a period of five years;
(c) For a person who has previously been restricted under (b) of
this subsection, a period of ten years.
(4) A restriction imposed under subsection (3) of this section
shall remain in effect until the department receives a declaration from
the person's ignition interlock device vendor, in a form provided or
approved by the department, certifying that there have been none of the
following incidents in the four consecutive months prior to the date of
release:
(a) An attempt to start the vehicle with a breath alcohol
concentration of 0.04 or more;
(b) Failure to take or pass any required retest; or
(c) Failure of the person to appear at the ignition interlock
device vendor when required for maintenance, repair, calibration,
monitoring, inspection, or replacement of the device.
(5) For a person required to install an ignition interlock device
pursuant to RCW 46.61.5249(4) or 46.61.500(3), the period of time of
the restriction shall be for six months and shall be subject to
subsection (4) of this section.
Sec. 8 RCW 46.61.5055 and 2010 c 269 s 4 are each amended to read
as follows:
(1) Except as provided in RCW 46.61.502(6) or 46.61.504(6), a
person who is convicted of a violation of RCW 46.61.502 or 46.61.504
and who has no prior offense within seven years shall be punished as
follows:
(a) In the case of a person whose alcohol concentration was less
than 0.15, or for whom for reasons other than the person's refusal to
take a test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than one day nor more than 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. In lieu of the
mandatory minimum term of imprisonment required under this subsection
(1)(a)(i), the court may order not less than fifteen days of electronic
home monitoring. The offender shall pay the cost of electronic home
monitoring. The county or municipality in which the penalty is being
imposed shall determine the cost. The court may also require the
offender's electronic home monitoring device to include an alcohol
detection breathalyzer, and the court may restrict the amount of
alcohol the offender may consume during the time the offender is on
electronic home monitoring; and
(ii) By a fine of not less than three hundred fifty dollars nor
more than five thousand dollars. Three hundred fifty dollars of the
fine may not be suspended or deferred unless the court finds the
offender to be indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than two days nor more than 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. In lieu of the mandatory minimum term
of imprisonment required under this subsection (1)(b)(i), the court may
order not less than thirty days of electronic home monitoring. The
offender shall pay the cost of electronic home monitoring. The county
or municipality in which the penalty is being imposed shall determine
the cost. The court may also require the offender's electronic home
monitoring device to include an alcohol detection breathalyzer, and the
court may restrict the amount of alcohol the offender may consume
during the time the offender is on electronic home monitoring; and
(ii) By a fine of not less than five hundred dollars nor more than
five thousand dollars. Five hundred dollars of the fine may not be
suspended or deferred unless the court finds the offender to be
indigent.
(2) Except as provided in RCW 46.61.502(6) or 46.61.504(6), a
person who is convicted of a violation of RCW 46.61.502 or 46.61.504
and who has one prior offense within seven years shall be punished as
follows:
(a) In the case of a person whose alcohol concentration was less
than 0.15, or for whom for reasons other than the person's refusal to
take a test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than thirty days nor more than one
year and sixty days of electronic home monitoring. The offender shall
pay for the cost of the electronic monitoring. The county or
municipality where the penalty is being imposed shall determine the
cost. The court may also require the offender's electronic home
monitoring device include an alcohol detection breathalyzer, and may
restrict the amount of alcohol the offender may consume during the time
the offender is on electronic home monitoring. Thirty days of
imprisonment and sixty days of electronic home monitoring may not be
suspended or deferred unless the court finds that the imposition of
this mandatory minimum sentence would impose a substantial risk to the
offender's physical or mental well-being. Whenever the mandatory
minimum sentence is suspended or deferred, the court shall state in
writing the reason for granting the suspension or deferral and the
facts upon which the suspension or deferral is based; and
(ii) By a fine of not less than five hundred dollars nor more than
five thousand dollars. Five hundred dollars of the fine may not be
suspended or deferred unless the court finds the offender to be
indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than forty-five days nor more than
one year and ninety days of electronic home monitoring. The offender
shall pay for the cost of the electronic monitoring. The county or
municipality where the penalty is being imposed shall determine the
cost. The court may also require the offender's electronic home
monitoring device include an alcohol detection breathalyzer, and may
restrict the amount of alcohol the offender may consume during the time
the offender is on electronic home monitoring. Forty-five days of
imprisonment and ninety days of electronic home monitoring may not be
suspended or deferred unless the court finds that the imposition of
this mandatory minimum sentence would impose a substantial risk to the
offender's physical or mental well-being. Whenever the mandatory
minimum sentence is suspended or deferred, the court shall state in
writing the reason for granting the suspension or deferral and the
facts upon which the suspension or deferral is based; and
(ii) By a fine of not less than seven hundred fifty dollars nor
more than five thousand dollars. Seven hundred fifty dollars of the
fine may not be suspended or deferred unless the court finds the
offender to be indigent.
(3) Except as provided in RCW 46.61.502(6) or 46.61.504(6), a
person who is convicted of a violation of RCW 46.61.502 or 46.61.504
and who has two or three prior offenses within seven years shall be
punished as follows:
(a) In the case of a person whose alcohol concentration was less
than 0.15, or for whom for reasons other than the person's refusal to
take a test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than ninety days nor more than one
year and one hundred twenty days of electronic home monitoring. The
offender shall pay for the cost of the electronic monitoring. The
county or municipality where the penalty is being imposed shall
determine the cost. The court may also require the offender's
electronic home monitoring device include an alcohol detection
breathalyzer, and may restrict the amount of alcohol the offender may
consume during the time the offender is on electronic home monitoring.
Ninety days of imprisonment and one hundred twenty days of electronic
home monitoring may not be suspended or deferred unless the court finds
that the imposition of this mandatory minimum sentence would impose a
substantial risk to the offender's physical or mental well-being.
Whenever the mandatory minimum sentence is suspended or deferred, the
court shall state in writing the reason for granting the suspension or
deferral and the facts upon which the suspension or deferral is based;
and
(ii) By a fine of not less than one thousand dollars nor more than
five thousand dollars. One thousand dollars of the fine may not be
suspended or deferred unless the court finds the offender to be
indigent; or
(b) In the case of a person whose alcohol concentration was at
least 0.15, or for whom by reason of the person's refusal to take a
test offered pursuant to RCW 46.20.308 there is no test result
indicating the person's alcohol concentration:
(i) By imprisonment for not less than one hundred twenty days nor
more than one year and one hundred fifty days of electronic home
monitoring. The offender shall pay for the cost of the electronic
monitoring. The county or municipality where the penalty is being
imposed shall determine the cost. The court may also require the
offender's electronic home monitoring device include an alcohol
detection breathalyzer, and may restrict the amount of alcohol the
offender may consume during the time the offender is on electronic home
monitoring. One hundred twenty days of imprisonment and one hundred
fifty days of electronic home monitoring may not be suspended or
deferred unless the court finds that the imposition of this mandatory
minimum sentence would impose a substantial risk to the offender's
physical or mental well-being. Whenever the mandatory minimum sentence
is suspended or deferred, the court shall state in writing the reason
for granting the suspension or deferral and the facts upon which the
suspension or deferral is based; and
(ii) By a fine of not less than one thousand five hundred dollars
nor more than five thousand dollars. One thousand five hundred dollars
of the fine may not be suspended or deferred unless the court finds the
offender to be indigent.
(4) A person who is convicted of a violation of RCW 46.61.502 or
46.61.504 shall be punished under chapter 9.94A RCW if:
(a) The person has four or more prior offenses within ten years; or
(b) The person has ever previously been convicted of:
(i) A violation of RCW 46.61.520 committed while under the
influence of intoxicating liquor or any drug;
(ii) A violation of RCW 46.61.522 committed while under the
influence of intoxicating liquor or any drug; ((or))
(iii) An out-of-state offense comparable to the offense specified
in (b)(i) or (ii) of this subsection; or
(iv) A violation of RCW 46.61.502(6) or 46.61.504(6).
(5)(a) The court shall require any person convicted of a violation
of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to apply
for an ignition interlock driver's license from the department and to
have a functioning ignition interlock device installed on all motor
vehicles operated by the person.
(b) The installation of an ignition interlock device is not
necessary on vehicles owned, leased, or rented by a person's employer
and on those vehicles whose care and/or maintenance is the temporary
responsibility of the employer, and driven at the direction of a
person's employer as a requirement of employment during working hours.
The person must provide the department with a declaration pursuant to
RCW 9A.72.085 from his or her employer stating that the person's
employment requires the person to operate a vehicle owned by the
employer or other persons during working hours.
(c) An ignition interlock device imposed under this section shall
be calibrated to prevent a motor vehicle from being started when the
breath sample provided has an alcohol concentration of 0.025 or more.
(d) The court may waive the requirement that a person apply for an
ignition interlock driver's license if the court makes a specific
finding in writing that:
(i) The person lives out-of-state and the devices are not
reasonably available in the person's local area;
(ii) The person does not operate a vehicle; or
(iii) The person is not eligible to receive an ignition interlock
driver's license under RCW 46.20.385 because the person is not a
resident of Washington, is a habitual traffic offender, has already
applied for or is already in possession of an ignition interlock
driver's license, has never had a driver's license, has been certified
under chapter 74.20A RCW as noncompliant with a child support order, or
is subject to any other condition or circumstance that makes the person
ineligible to obtain an ignition interlock driver's license.
(e) If a court finds that a person is not eligible to receive an
ignition interlock driver's license under this section, the court is
not required to make any further subsequent inquiry or determination as
to the person's eligibility.
(f) If the court orders that a person refrain from consuming any
alcohol and requires the person to apply for an ignition interlock
driver's license, and the person states that he or she does not operate
a motor vehicle or the person is ineligible to obtain an ignition
interlock driver's license, the court shall order the person to submit
to alcohol monitoring through an alcohol detection breathalyzer device,
transdermal sensor device, or other technology designed to detect
alcohol in a person's system. Alcohol monitoring ordered under this
subsection must be for the period of the mandatory license suspension
or revocation. The person shall pay for the cost of the monitoring.
The county or municipality where the penalty is being imposed shall
determine the cost.
(g) The period of time for which ignition interlock use ((or
alcohol monitoring)) is required will be as follows:
(i) For a person who has not previously been restricted under this
section, a period of one year;
(ii) For a person who has previously been restricted under (g)(i)
of this subsection, a period of five years;
(iii) For a person who has previously been restricted under (g)(ii)
of this subsection, a period of ten years.
(h) Beginning with incidents occurring on or after the effective
date of this section, when calculating the period of time for the
restriction under RCW 46.20.720(3), the department must also give the
person a day-for-day credit for the time period, beginning from the
date of the incident, during which the person kept an ignition
interlock device installed on all vehicles the person operates. For
the purposes of this subsection (5)(h), the term "all vehicles" does
not include vehicles that would be subject to the employer exception
under RCW 46.20.720(3).
(6) If a person who is convicted of a violation of RCW 46.61.502 or
46.61.504 committed the offense while a passenger under the age of
sixteen was in the vehicle, the court shall:
(a) In any case in which the installation and use of an interlock
or other device is not mandatory under RCW 46.20.720 or other law,
order the use of such a device for not less than sixty days following
the restoration of the person's license, permit, or nonresident driving
privileges; and
(b) In any case in which the installation and use of such a device
is otherwise mandatory, order the use of such a device for an
additional sixty days.
(7) In exercising its discretion in setting penalties within the
limits allowed by this section, the court shall particularly consider
the following:
(a) Whether the person's driving at the time of the offense was
responsible for injury or damage to another or another's property; and
(b) Whether at the time of the offense the person was driving or in
physical control of a vehicle with one or more passengers.
(8) An offender punishable under this section is subject to the
alcohol assessment and treatment provisions of RCW 46.61.5056.
(9) The license, permit, or nonresident privilege of a person
convicted of driving or being in physical control of a motor vehicle
while under the influence of intoxicating liquor or drugs must:
(a) If the person's alcohol concentration was less than 0.15, or if
for reasons other than the person's refusal to take a test offered
under RCW 46.20.308 there is no test result indicating the person's
alcohol concentration:
(i) Where there has been no prior offense within seven years, be
suspended or denied by the department for ninety days;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for two years; or
(iii) Where there have been two or more prior offenses within seven
years, be revoked or denied by the department for three years;
(b) If the person's alcohol concentration was at least 0.15:
(i) Where there has been no prior offense within seven years, be
revoked or denied by the department for one year;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for nine hundred days; or
(iii) Where there have been two or more prior offenses within seven
years, be revoked or denied by the department for four years; or
(c) If by reason of the person's refusal to take a test offered
under RCW 46.20.308, there is no test result indicating the person's
alcohol concentration:
(i) Where there have been no prior offenses within seven years, be
revoked or denied by the department for two years;
(ii) Where there has been one prior offense within seven years, be
revoked or denied by the department for three years; or
(iii) Where there have been two or more previous offenses within
seven years, be revoked or denied by the department for four years.
The department shall grant credit on a day-for-day basis for any
portion of a suspension, revocation, or denial already served under
this subsection for a suspension, revocation, or denial imposed under
RCW 46.20.3101 arising out of the same incident.
For purposes of this subsection (9), the department shall refer to
the driver's record maintained under RCW 46.52.120 when determining the
existence of prior offenses.
(10) After expiration of any period of suspension, revocation, or
denial of the offender's license, permit, or privilege to drive
required by this section, the department shall place the offender's
driving privilege in probationary status pursuant to RCW 46.20.355.
(11)(a) In addition to any nonsuspendable and nondeferrable jail
sentence required by this section, whenever the court imposes less than
one year in jail, the court shall also suspend but shall not defer a
period of confinement for a period not exceeding five years. The court
shall impose conditions of probation that include: (i) Not driving a
motor vehicle within this state without a valid license to drive and
proof of 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 device on the probationer's motor vehicle, alcohol or drug
treatment, supervised probation, or other conditions that may be
appropriate. The sentence may be imposed in whole or in part upon
violation of a condition of probation during the suspension period.
(b) For each violation of mandatory conditions of probation under
(a)(i), (ii), or (iii) of this subsection, the court shall order the
convicted person to be confined for thirty days, which shall not be
suspended or deferred.
(c) For each incident involving a violation of a mandatory
condition of probation imposed under this subsection, the license,
permit, or privilege to drive of the person shall be suspended by the
court for thirty days or, if such license, permit, or privilege to
drive already is suspended, revoked, or denied at the time the finding
of probation violation is made, the suspension, revocation, or denial
then in effect shall be extended by thirty days. The court shall
notify the department of any suspension, revocation, or denial or any
extension of a suspension, revocation, or denial imposed under this
subsection.
(12) A court may waive the electronic home monitoring requirements
of this chapter when:
(a) The offender does not have a dwelling, telephone service, or
any other necessity to operate an electronic home monitoring system;
(b) The offender does not reside in the state of Washington; or
(c) The court determines that there is reason to believe that the
offender would violate the conditions of the electronic home monitoring
penalty.
Whenever the mandatory minimum term of electronic home monitoring
is waived, the court shall state in writing the reason for granting the
waiver and the facts upon which the waiver is based, and shall impose
an alternative sentence with similar punitive consequences. The
alternative sentence may include, but is not limited to, additional
jail time, work crew, or work camp.
Whenever the combination of jail time and electronic home
monitoring or alternative sentence would exceed three hundred sixty-five days, the offender shall serve the jail portion of the sentence
first, and the electronic home monitoring or alternative portion of the
sentence shall be reduced so that the combination does not exceed three
hundred sixty-five days.
(13) An offender serving a sentence under this section, whether or
not a mandatory minimum term has expired, may be granted an
extraordinary medical placement by the jail administrator subject to
the standards and limitations set forth in RCW 9.94A.728(3).
(14) For purposes of this section and RCW 46.61.502 and 46.61.504:
(a) A "prior offense" means any of the following:
(i) A conviction for a violation of RCW 46.61.502 or an equivalent
local ordinance;
(ii) A conviction for a violation of RCW 46.61.504 or an equivalent
local ordinance;
(iii) A conviction for a violation of RCW 46.61.520 committed while
under the influence of intoxicating liquor or any drug, or a conviction
for a violation of RCW 46.61.520 committed in a reckless manner or with
the disregard for the safety of others if the conviction is the result
of a charge that was originally filed as a violation of RCW 46.61.520
committed while under the influence of intoxicating liquor or any drug;
(iv) A conviction for a violation of RCW 46.61.522 committed while
under the influence of intoxicating liquor or any drug, or a conviction
for a violation of RCW 46.61.522 committed in a reckless manner or with
the disregard for the safety of others if the conviction is the result
of a charge that was originally filed as a violation of RCW 46.61.522
committed while under the influence of intoxicating liquor or any drug;
(v) A conviction for a violation of RCW 46.61.5249, 46.61.500, or
9A.36.050 or an equivalent local ordinance, if the conviction is the
result of a charge that was originally filed as a violation of RCW
46.61.502 or 46.61.504, or an equivalent local ordinance, or of RCW
46.61.520 or 46.61.522;
(vi) An out-of-state conviction for a violation that would have
been a violation of (a)(i), (ii), (iii), (iv), or (v) of this
subsection if committed in this state;
(vii) A deferred prosecution under chapter 10.05 RCW granted in a
prosecution for a violation of RCW 46.61.502, 46.61.504, or an
equivalent local ordinance; 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;
If a deferred prosecution is revoked based on a subsequent
conviction for an offense listed in this subsection (14)(a), the
subsequent conviction shall not be treated as a prior offense of the
revoked deferred prosecution for the purposes of sentencing;
(b) "Within seven years" means that the arrest for a prior offense
occurred within seven years before or after the arrest for the current
offense; and
(c) "Within ten years" means that the arrest for a prior offense
occurred within ten years before or after the arrest for the current
offense.
Sec. 9 RCW 10.05.140 and 2004 c 95 s 1 are each amended to read
as follows:
As a condition of granting a deferred prosecution petition, the
court shall order that the petitioner shall not operate a motor vehicle
upon the public highways without a valid operator's license and proof
of liability insurance. The amount of liability insurance shall be
established by the court at not less than that established by RCW
46.29.490. As a condition of granting a deferred prosecution petition
on any alcohol-dependency based case, the court shall also order the
installation of an ignition interlock under RCW 46.20.720. The
required periods of use of the interlock shall be not less than the
periods provided for in RCW 46.20.720(((2)))(3) (a), (b), and (c). As
a condition of granting a deferred prosecution petition, the court may
order the petitioner to make restitution and to pay costs as defined in
RCW 10.01.160. To help ensure continued sobriety and reduce the
likelihood of reoffense, the court may order reasonable conditions
during the period of the deferred prosecution including, but not
limited to, attendance at self-help recovery support groups for
alcoholism or drugs, complete abstinence from alcohol and all
nonprescribed mind-altering drugs, periodic urinalysis or breath
analysis, and maintaining law-abiding behavior. The court may
terminate the deferred prosecution program upon violation of the
deferred prosecution order.
Sec. 10 RCW 10.05.010 and 2008 c 282 s 15 are each amended to
read as follows:
(1) In a court of limited jurisdiction a person charged with a
misdemeanor or gross misdemeanor may petition the court to be
considered for a deferred prosecution program. The petition shall be
filed with the court at least seven days before the date set for trial
but, upon a written motion and affidavit establishing good cause for
the delay and failure to comply with this section, the court may waive
this requirement subject to the defendant's reimbursement to the court
of the witness fees and expenses due for subpoenaed witnesses who have
appeared on the date set for trial.
(2)(a) A person charged with a traffic infraction, misdemeanor, or
gross misdemeanor under Title 46 RCW shall not be eligible for a
deferred prosecution program unless the court makes specific findings
pursuant to RCW 10.05.020 or section 18 of this act. Except as
provided in (b) of this subsection, such person shall not be eligible
for a deferred prosecution program more than once; and cannot receive
a deferred prosecution under both RCW 10.05.020 and section 18 of this
act. Separate offenses committed more than seven days apart may not be
consolidated in a single program.
(b) A person charged with a violation of RCW 46.61.502, 46.61.504,
46.61.5249, or an equivalent local ordinance, or a violation of RCW
46.61.500 or an equivalent local ordinance if the offense involved the
use of alcohol or drugs, shall not be eligible for a deferred
prosecution program more than twice.
(3) A person charged with a misdemeanor or a gross misdemeanor
under chapter 9A.42 RCW shall not be eligible for a deferred
prosecution program unless the court makes specific findings pursuant
to RCW 10.05.020. Such person shall not be eligible for a deferred
prosecution program more than once.
Sec. 11 RCW 9.94A.533 and 2009 c 141 s 2 are each amended to read
as follows:
(1) The provisions of this section apply to the standard sentence
ranges determined by RCW 9.94A.510 or 9.94A.517.
(2) For persons convicted of the anticipatory offenses of criminal
attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the
standard sentence range is determined by locating the sentencing grid
sentence range defined by the appropriate offender score and the
seriousness level of the completed crime, and multiplying the range by
seventy-five percent.
(3) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a firearm as defined in RCW
9.41.010 and the offender is being sentenced for one of the crimes
listed in this subsection as eligible for any firearm enhancements
based on the classification of the completed felony crime. If the
offender is being sentenced for more than one offense, the firearm
enhancement or enhancements must be added to the total period of
confinement for all offenses, regardless of which underlying offense is
subject to a firearm enhancement. If the offender or an accomplice was
armed with a firearm as defined in RCW 9.41.010 and the offender is
being sentenced for an anticipatory offense under chapter 9A.28 RCW to
commit one of the crimes listed in this subsection as eligible for any
firearm enhancements, the following additional times shall be added to
the standard sentence range determined under subsection (2) of this
section based on the felony crime of conviction as classified under RCW
9A.28.020:
(a) Five years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both, and not covered under (f) of this subsection;
(b) Three years for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both, and
not covered under (f) of this subsection;
(c) Eighteen months for any felony defined under any law as a class
C felony or with a statutory maximum sentence of five years, or both,
and not covered under (f) of this subsection;
(d) If the offender is being sentenced for any firearm enhancements
under (a), (b), and/or (c) of this subsection and the offender has
previously been sentenced for any deadly weapon enhancements after July
23, 1995, under (a), (b), and/or (c) of this subsection or subsection
(4)(a), (b), and/or (c) of this section, or both, all firearm
enhancements under this subsection shall be twice the amount of the
enhancement listed;
(e) Notwithstanding any other provision of law, all firearm
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements, for
all offenses sentenced under this chapter. However, whether or not a
mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(((4)))(3);
(f) The firearm enhancements in this section shall apply to all
felony crimes except the following: Possession of a machine gun,
possessing a stolen firearm, drive-by shooting, theft of a firearm,
unlawful possession of a firearm in the first and second degree, and
use of a machine gun in a felony;
(g) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a firearm enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(4) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a deadly weapon other than a
firearm as defined in RCW 9.41.010 and the offender is being sentenced
for one of the crimes listed in this subsection as eligible for any
deadly weapon enhancements based on the classification of the completed
felony crime. If the offender is being sentenced for more than one
offense, the deadly weapon enhancement or enhancements must be added to
the total period of confinement for all offenses, regardless of which
underlying offense is subject to a deadly weapon enhancement. If the
offender or an accomplice was armed with a deadly weapon other than a
firearm as defined in RCW 9.41.010 and the offender is being sentenced
for an anticipatory offense under chapter 9A.28 RCW to commit one of
the crimes listed in this subsection as eligible for any deadly weapon
enhancements, the following additional times shall be added to the
standard sentence range determined under subsection (2) of this section
based on the felony crime of conviction as classified under RCW
9A.28.020:
(a) Two years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both, and not covered under (f) of this subsection;
(b) One year for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both, and
not covered under (f) of this subsection;
(c) Six months for any felony defined under any law as a class C
felony or with a statutory maximum sentence of five years, or both, and
not covered under (f) of this subsection;
(d) If the offender is being sentenced under (a), (b), and/or (c)
of this subsection for any deadly weapon enhancements and the offender
has previously been sentenced for any deadly weapon enhancements after
July 23, 1995, under (a), (b), and/or (c) of this subsection or
subsection (3)(a), (b), and/or (c) of this section, or both, all deadly
weapon enhancements under this subsection shall be twice the amount of
the enhancement listed;
(e) Notwithstanding any other provision of law, all deadly weapon
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements, for
all offenses sentenced under this chapter. However, whether or not a
mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(((4)))(3);
(f) The deadly weapon enhancements in this section shall apply to
all felony crimes except the following: Possession of a machine gun,
possessing a stolen firearm, drive-by shooting, theft of a firearm,
unlawful possession of a firearm in the first and second degree, and
use of a machine gun in a felony;
(g) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a deadly weapon enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(5) The following additional times shall be added to the standard
sentence range if the offender or an accomplice committed the offense
while in a county jail or state correctional facility and the offender
is being sentenced for one of the crimes listed in this subsection. If
the offender or an accomplice committed one of the crimes listed in
this subsection while in a county jail or state correctional facility,
and the offender is being sentenced for an anticipatory offense under
chapter 9A.28 RCW to commit one of the crimes listed in this
subsection, the following additional times shall be added to the
standard sentence range determined under subsection (2) of this
section:
(a) Eighteen months for offenses committed under RCW 69.50.401(2)
(a) or (b) or 69.50.410;
(b) Fifteen months for offenses committed under RCW 69.50.401(2)
(c), (d), or (e);
(c) Twelve months for offenses committed under RCW 69.50.4013.
For the purposes of this subsection, all of the real property of a
state correctional facility or county jail shall be deemed to be part
of that facility or county jail.
(6) An additional twenty-four months shall be added to the standard
sentence range for any ranked offense involving a violation of chapter
69.50 RCW if the offense was also a violation of RCW 69.50.435 or
((9.94A.605)) 9.94A.827. All enhancements under this subsection shall
run consecutively to all other sentencing provisions, for all offenses
sentenced under this chapter.
(7) An additional two years shall be added to the standard sentence
range for vehicular homicide committed while under the influence of
intoxicating liquor or any drug as defined by RCW 46.61.502 for each
prior offense as defined in RCW 46.61.5055. All enhancements under
this subsection shall be mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions.
(8)(a) The following additional times shall be added to the
standard sentence range for felony crimes committed on or after July 1,
2006, if the offense was committed with sexual motivation, as that term
is defined in RCW 9.94A.030. If the offender is being sentenced for
more than one offense, the sexual motivation enhancement must be added
to the total period of total confinement for all offenses, regardless
of which underlying offense is subject to a sexual motivation
enhancement. If the offender committed the offense with sexual
motivation and the offender is being sentenced for an anticipatory
offense under chapter 9A.28 RCW, the following additional times shall
be added to the standard sentence range determined under subsection (2)
of this section based on the felony crime of conviction as classified
under RCW 9A.28.020:
(i) Two years for any felony defined under the law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both;
(ii) Eighteen months for any felony defined under any law as a
class B felony or with a statutory maximum sentence of ten years, or
both;
(iii) One year for any felony defined under any law as a class C
felony or with a statutory maximum sentence of five years, or both;
(iv) If the offender is being sentenced for any sexual motivation
enhancements under (i), (ii), and/or (iii) of this subsection and the
offender has previously been sentenced for any sexual motivation
enhancements on or after July 1, 2006, under (i), (ii), and/or (iii) of
this subsection, all sexual motivation enhancements under this
subsection shall be twice the amount of the enhancement listed;
(b) Notwithstanding any other provision of law, all sexual
motivation enhancements under this subsection are mandatory, shall be
served in total confinement, and shall run consecutively to all other
sentencing provisions, including other sexual motivation enhancements,
for all offenses sentenced under this chapter. However, whether or not
a mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(((4)))(3);
(c) The sexual motivation enhancements in this subsection apply to
all felony crimes;
(d) If the standard sentence range under this subsection exceeds
the statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a sexual motivation
enhancement increases the sentence so that it would exceed the
statutory maximum for the offense, the portion of the sentence
representing the enhancement may not be reduced;
(e) The portion of the total confinement sentence which the
offender must serve under this subsection shall be calculated before
any earned early release time is credited to the offender;
(f) Nothing in this subsection prevents a sentencing court from
imposing a sentence outside the standard sentence range pursuant to RCW
9.94A.535.
(9) An additional one-year enhancement shall be added to the
standard sentence range for the felony crimes of RCW 9A.44.073,
9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, or 9A.44.089 committed on
or after July 22, 2007, if the offender engaged, agreed, or offered to
engage the victim in the sexual conduct in return for a fee. If the
offender is being sentenced for more than one offense, the one-year
enhancement must be added to the total period of total confinement for
all offenses, regardless of which underlying offense is subject to the
enhancement. If the offender is being sentenced for an anticipatory
offense for the felony crimes of RCW 9A.44.073, 9A.44.076, 9A.44.079,
9A.44.083, 9A.44.086, or 9A.44.089, and the offender attempted,
solicited another, or conspired to engage, agree, or offer to engage
the victim in the sexual conduct in return for a fee, an additional
one-year enhancement shall be added to the standard sentence range
determined under subsection (2) of this section. For purposes of this
subsection, "sexual conduct" means sexual intercourse or sexual
contact, both as defined in chapter 9A.44 RCW.
(10)(a) For a person age eighteen or older convicted of any
criminal street gang-related felony offense for which the person
compensated, threatened, or solicited a minor in order to involve the
minor in the commission of the felony offense, the standard sentence
range is determined by locating the sentencing grid sentence range
defined by the appropriate offender score and the seriousness level of
the completed crime, and multiplying the range by one hundred twenty-five percent. If the standard sentence range under this subsection
exceeds the statutory maximum sentence for the offense, the statutory
maximum sentence is the presumptive sentence unless the offender is a
persistent offender.
(b) This subsection does not apply to any criminal street gang-related felony offense for which involving a minor in the commission of
the felony offense is an element of the offense.
(c) The increased penalty specified in (a) of this subsection is
unavailable in the event that the prosecution gives notice that it will
seek an exceptional sentence based on an aggravating factor under RCW
9.94A.535.
(11) An additional twelve months and one day shall be added to the
standard sentence range for a conviction of attempting to elude a
police vehicle as defined by RCW 46.61.024, if the conviction included
a finding by special allegation of endangering one or more persons
under RCW 9.94A.834.
(12) An additional twelve months shall be added to the standard
sentence range for an offense that is also a violation of RCW
9.94A.831.