House of Representatives
Office of Program Research
Public Safety Committee
This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.
Brief Description: Modifying provisions that address impaired driving.
Sponsors: Representatives Morrell, Klippert, Goodman, Short, Van De Wege, Warnick, Bergquist, Harris, Hansen, Zeiger, Tharinger, Hurst, Dahlquist, Fitzgibbon, Kochmar, Fey, Hope, Kirby, O'Ban, Seaquist, Haler, Habib, Hargrove, Sells, Smith, Stanford, Sullivan, Maxwell, McCoy, Springer, Hunt, Liias, Stonier, Pollet, Ryu, Farrell, Orwall, Moscoso and Upthegrove; by request of Governor Inslee.
Hearing Date: 4/18/13
Staff: Yvonne Walker (786-7841).
Penalties for Driving Under the Influence/Physical Control of a Vehicle Under the Influence. A person can commit driving under the influence (DUI) or being in physical control of a motor vehicle under the influence (PC) of intoxicating liquor or any drug if the person drives with a blood or breath alcohol concentration (BAC) of 0.08 or higher or is under the influence of or affected by liquor or any drug. A DUI/PC offense is punishable as a gross misdemeanor offense. It becomes a class C felony offense if a person has four or more prior offenses within 10 years.
Sentencing Reform Act Scoring. Under the Sentencing Reform Act (SRA), an offender convicted of a felony receives a standard sentence range that is based on the seriousness of the offense and the offender's prior felony convictions. The number of points an offender receives for current and prior offenses varies according to certain rules.
Serious traffic convictions are generally not included in a person's score if, since the last date of release from confinement pursuant to a felony conviction, the offender has spent five years in the community without committing a new crime. Serious traffic offenses include the following nonfelony offenses: DUI/PC, Reckless Driving, or Hit-and-Run attended vehicle.
If a person's current conviction is a felony DUI/PC offense, then all prior felony DUI/PC, and serious traffic offenses are included in the person's score if: (1) the prior convictions were committed within five years since the last date of release from confinement; or (2) the prior convictions are considered "prior offenses within 10 years." A prior offense is "within 10 years" if the arrest for a prior offense occurred within 10 years of the arrest for the current offense. By contrast, under felony sentencing laws, the corresponding time period is generally from the end of the person's confinement for a prior crime to the commission of the new crime. "Prior offenses" include convictions for: (1) DUI/PC; (2) vehicular homicide and vehicular assault if either was committed while under the influence; (3) negligent driving after having consumed alcohol ("wet neg"), reckless driving, and reckless endangerment, if the original charge was DUI/PCI, vehicular homicide, or vehicular assault; and (4) an equivalent local DUI/PC ordinance or out-of-state DUI law. In addition, a deferred prosecution for DUI or "wet neg" is a prior offense even if the charges are dropped after successful completion of the deferred prosecution program.
Community Custody. If an offender is sentenced to the custody of the Department of Corrections (DOC) for a felony DUI/PC offense, the court must sentence the offender to community custody for 12-18 months, in addition to the terms of the sentence. The DOC utilizes a validated risk assessment and supervises offenders according to their risk level.
Electronic Home Monitoring. The mandatory minimum penalties for a DUI/PC offense vary depending on the person's BAC and whether the person has "prior offenses." The mandatory minimum penalties may include electronic home monitoring (EHM) to be paid for by the offender. The court may also require the offender's EHM device to include an alcohol detection breathalyzer and may restrict the amount of alcohol the offender may consume during the time he or she is on electronic monitoring. The court may waive EHM under certain circumstances, such as when the offender lacks a dwelling or telephone services. Whenever the mandatory minimum term of EHM is waived, the court must impose an alternative sentence that can include jail time, work crew, or work camp.
Negligent Driving and Marijuana. Negligent Driving, a misdemeanor offense, occurs when a person operates a vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property, and when the person exhibits the effects of having consumed liquor, or illegal drugs or exhibits the effects of having inhaled or ingested a chemical for its intoxicating or hallucinatory effects.
Impaired Driving Offense With a Child in the Vehicle. The state's drunk driving laws have a number of penalty enhancements for individuals convicted of DUI/PC offenses. Two enhancements apply to individuals arrested and convicted of DUI/PC when there is a minor passenger in the vehicle.
First, the court must order the person to use an ignition interlock device (IID) on his or her vehicle for six months on top of the mandatory ignition interlock requirement already applicable for a DUI/PC conviction. Second, if an individual is convicted of a gross misdemeanor DUI/PC offense with a child under the age of 16 years in the vehicle, monetary penalties are assessed based on the individual's prior convictions as follows:
no prior offenses – minimum of $1,000 and maximum of $5,000;
one prior offense within seven years – minimum of $2,000 and maximum of $5,000; and
two or three prior offenses with seven years – minimum of $3,000 and maximum of $10,000.
If an individual is convicted of a felony DUI/PC, Vehicular Assault DUI, or Vehicular Homicide DUI and had a child under the age of 16 years in the vehicle at the time of the offense, a 12-month sentence enhancement for each child in the vehicle is added to the individual's standard sentence.
The current statutory language is ambiguous as to whether these penalties and enhancements are in addition to or in lieu of the current penalties for DUI offenses. In addition to the fines collected, the courts also impose and collect a public safety and education assessment (PSEA) equal to 70 percent of the fine.
Conditions of Probation. Whenever a court imposes up to 364 days in jail for a person convicted of an impaired driving offense, the court also has jurisdiction over the offender for up to five years in order to supervise probationary sentences. Courts must impose conditions of probation that include: (1) not driving without a valid license and proof of financial responsibility for the future; (2) not driving while having an alcohol concentration of 0.08 or more within two hours after driving; and (3) not refusing to submit to a breath or blood test to determine alcohol concentration when a law enforcement officer believes the person was driving or was in physical control of a motor vehicle while under the influence of alcohol. A violation of probation can result in incarceration and suspension of a person's license, permit, or privilege to drive.
Arrest Without Warrant. A police officer having probable cause to believe that a person has committed or is committing a felony has the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor offense but only when the offense is committed in the presence of the officer, except in certain enumerated situations. A police officer also has the authority to arrest a person when the officer has probable cause to believe that a person has committed or is committing a violation of specific traffic laws enumerated in statute.
Establishment of Driving Under the Influence Courts. Counties are authorized to establish and operate DUI courts for nonviolent offenders. Municipalities must enter into cooperative agreements with counties that have DUI courts to provide DUI court services. Any jurisdiction that establishes a DUI court must establish minimum requirements for the participation of offenders in the DUI court. The minimum requirements must include that:
the offender would benefit from alcohol treatment;
the offender has not previously been convicted of a serious violent offense or sex offense, Vehicular Homicide, Vehicular Assault, or an equivalent out-of-state offense; and
the offender is not currently charged with or convicted of certain enumerated offenses, or an offense during which the defendant used a firearm, or an offense during which the defendant caused substantial or great bodily harm or death to another person.
Deferred Sentences. A "deferred sentence" means a sentence that will not be carried out if the defendant meets certain requirements, such as complying with the conditions of probation. A defendant who has a deferred sentence and who fails to appear for any hearing to address the defendant's compliance with the terms of probation will have the term of probation tolled until the defendant makes his or her presence known to the court. The deferral of a sentence may also be revoked if the defendant violates or fails to carry out any of the conditions of the deferral and as a result the original sentence previously suspended or unexecuted may be imposed. Generally, deferred sentences are not available for gross misdemeanor DUI or PC offenses.
Sentencing Enhancements. Under the SRA, the court must impose imprisonment in addition to the standard sentencing range if specific conditions for sentencing enhancements are met. Sentencing enhancements may apply in such situations as when the offender: (1) was armed with a firearm or deadly weapon while committing certain felonies; (2) committed certain felonies while incarcerated; (3) committed certain drug offenses; (4) committed vehicular homicide while under the influence of alcohol or drugs; (5) committed a felony crime that was committed with sexual motivation; or (6) attempted to elude a police vehicle while endangering one or more persons. The United States Supreme Court, in Blakely v. Washington, ruled that any factor that increases a defendant's sentence above the standard range, other than the fact of a prior conviction, must be proven to a jury beyond a reasonable doubt. To do otherwise would violate the defendant's right to a jury trial under the Sixth Amendment.
Attempting to Elude a Police Vehicle: In a case where a special allegation has been made, if a court makes a finding of fact, or in a jury trial if the jury finds a special verdict, that: (1) an offender committed the crime of Attempting to Elude a Pursuing Police Vehicle; and (2) the underlying offense involved the endangerment of one or more persons (other than the defendant or pursuing law enforcement officer), then the court must impose a sentence enhancement of 12 months and one day of imprisonment.
Aggravating Circumstances. Generally, the standard sentencing range is presumed to be appropriate for the typical felony case. However, the law provides that, in exceptional cases, a court has the discretion to depart from the standard range and may impose an exceptional sentence below the standard range (with a mitigating circumstance) or above the range (with an aggravating circumstance). The SRA provides an exclusive list of aggravating circumstances which the court may consider an aggravating circumstance or which a jury may consider in imposing an exceptional sentence above the standard range.
Ignition Interlock Device. Ignition Interlock Test: When a person has his or her regular driver's license reinstated and an IID is required to be installed, that device must remain on the vehicle until the Department of Licensing (DOL) receives a declaration from the person's ignition interlock vendor certifying that there have been no "incidents" in the four consecutive months prior to the date the requirement expires. An "incident" is: (1) an attempt to start the vehicle with a BAC of 0.04 or higher; (2) failure to take or pass any required re-test; or (3) failure of the person to appear at the vendor when required.
Ignition Interlock Certification Form: The Washington State Patrol (WSP), by rule, provides standards for the certification, installation, repair, and removal of IIDs. Under the WSP rules, the IID must meet certain specifications. For example, the device must meet or exceed minimum test standards of the model specifications for ignition interlock devices published under federal law. Only a notarized statement from a laboratory that is certified by the International Organization of Standardization is capable of performing the tests specified will be accepted as proof of meeting or exceeding the standards. The notarized statement for certifying IIDs referencing the ignition interlock standards that must be met under the federal register is specified and referenced in the WSP's statute.
Driver's License. Marking of Drivers' Licenses: If, after arrest for an impaired driving offense, a person is found to have an alcohol or drug concentration above the statutory legal limits, the DOL must notify the person in writing of its intent to suspend, revoke, or deny the person's license or privilege to drive and the DOL or the arresting law enforcement officer must mark the person's driver's license. In addition, the court must also mark a person's driver's license when a person is convicted of an offense for which mandatory withholding of the driving privilege is required.
Commercial Driver's License: A person can be disqualified from driving a commercial motor vehicle for a period of not less than one year if the DOL receives a report that the person has been convicted of a first violation of DUI, driving a commercial motor vehicle while the in the person's system is 0.04 or more, leaving the scene of an accident, using a motor vehicle in the commission of a felony, refusing to submit to a test to determine the person's BAC level, driving a commercial motor vehicle with a revoked, suspended, or canceled driver's license, or causing a fatality through the negligent operation of a commercial motor vehicle, including but limited to the crimes of Vehicular Homicide and Negligent Homicide.
The statute does not address the grounds for disqualification from driving a commercial motor vehicle when a person is found with a chemical tetrahydrocannabinol (THC) concentration in his or her system. This "THC" is a chemical found in marijuana.
Target Zero. Target Zero is the state's strategic highway safety plan that calls for reducing highway deaths to zero by the year 2030. The four strategies of Target Zero include: enforcement, engineering, education, and emergency medical service.
Under Target Zero, state troopers, county sheriff's deputies and city and tribal police officers focus on those violations proven to cause fatal or serious injury collisions. These include: speeding, driving while impaired, and failure to wear a seat belt. Officers aggressively enforce DUI laws by seeking impaired drivers at the most dangerous locations.
Summary of Bill:
Numerous clarifications and sentencing enhancements are made to the impaired driving statutes including clarifying the SRA scoring provisions, imposing mandatory sentences, adjusting statutorily imposed fines, expanding the list of aggravating circumstances, amending statutory provisions relating to IIDs, the EHM devices, and commercial driver license restrictions.
Sentencing Reform Act Scoring. The scoring provisions under the SRA are clarified. If a defendant's present conviction is for a felony DUI/PC offense, then all predicate crimes for the offense must be included in the offender score. Felony DUI/PC offenses will not washout in scoring a subsequent felony DUI/PC offense.
The definition of a "prior offense" in the impaired driving statute is expanded to include cases where a deferred sentence was imposed in a prosecution for a Negligent Driving in the first degree offense, a Reckless Driving offense, or a Reckless Endangerment offense, when the original charge (which was pled down to a lesser charge) was filed as a DUI/PC offense or an equivalent ordinance, or a Vehicular Homicide, or Vehicular Assault offense.
Penalties for Driving Under the Influence/Physical Control of a Vehicle Under the Influence. The penalties for a DUI/PC offense are amended as follows:
Forty-eight hours. In an impaired driving case where a person has an alcohol concentration of at least 0.15, the offense is punishable by imprisonment of no less than two days, but no more than 364 days. Two consecutive days of the imprisonment may not be suspended or deferred unless the court finds that the imposition of the mandatory minimum sentence would impose a substantial risk to the offender's physical or mental well-being. Forty-eight consecutive hours (changed from two days) of a sentence of two to 364 days must not be suspended or deferred for a person with no prior DUI or PC offenses and who either refuses a breath or blood test or has a BAC of at least 0.15 percent unless it would impose a substantial risk to the offender's health or wellbeing.
One Prior DUI or PC Offense. A person convicted of DUI or PC with a BAC under 0.15 percent, and who has one prior offense within the prior seven years, must be sentenced to six months' incarceration and 60 days of EHM, or, if available, to community-based treatment for six months along with the Statewide 24/7 Sobriety Program monitoring. A person convicted of DUI or PC with one prior offense within the prior seven years, and who either refuses a breath or blood test or has a BAC of at least 0.15 percent, must be sentenced to six months' incarceration and 90 days of EHM, or, if available, to community-based treatment for six months along with Statewide 24/7 Sobriety Program monitoring.
Two or Three Prior DUI or PC Offenses. A person convicted of DUI or PC with a BAC under 0.15 percent, and who has two or three prior offenses within the prior seven years, must be sentenced to 364 days of incarceration (instead of 90–364 days), 120 days of EHM, and the person must be prohibited from purchasing alcohol for 10 years. A person convicted of DUI or PC with a BAC of at least 0.15 percent, and who has two or three prior offenses within the prior seven years, must be sentenced to 364 days' incarceration (instead of 120–364 days), 150 days of home monitoring, and the person must be prohibited from purchasing alcohol for 10 years.
Four or More Prior Offenses. A person convicted of DUI or PC and who has four or more prior offenses within the prior 10 years or who has a prior conviction for either vehicular assault or vehicular homicide, must be prohibited from purchasing alcohol for 10 years.
In any case where an offender is prohibited from purchasing alcohol for 10 years due to a DUI or PC conviction, such person must surrender his or her current driver's license or permit within 48 hours and obtain a new alternative vertically oriented driver's license through the DOL.
Community Custody. Regardless of risk level classification, the DOC must supervise a DUI/PC offender for six months in the community unless treatment is ordered, in which case the period of community custody may include up to the period of treatment but cannot exceed the one year.
Electronic Home Monitoring. In cases where a court requires an offender to use an EHM device, the court may also require the EHM device to include another separate type of alcohol monitoring device (instead of an alcohol detection breathalyzer). If a court determines that an alcohol monitoring device utilizing wireless reporting technology is reasonably available, the court may require the offender to obtain such a device during the period of his or her required EHM. In addition, whenever a mandatory minimum term of EHM is waived, the court shall impose an alternative sentence that may include, but is not limited to the use of an IID.
Negligent Driving and Marijuana. The consumption of marijuana is added to the Negligent Driving statute. "Exhibiting the effects of having consumed marijuana" means that a person has the odor of marijuana on his or her person, or by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed marijuana and either: (1) is in possession of or in close proximity to a container that has or recently had marijuana in it; or (2) is shown by other evidence to have recently consumed marijuana.
Impaired Driving Offense With a Child In the Vehicle. When setting penalties for DUI and PC offenses, the courts must particularly consider whether a minor was in the vehicle at time of the offense. The ignition interlock penalties and the fines imposed specifically for individuals convicted of an impaired driving offense when a minor passenger was in the vehicle are clarified to be addition to all other impaired driving penalties imposed by law. The fine for a DUI/PC offense with a child in the vehicle is exempt from the PSEA fee that is imposed for other fines, forfeitures, and penalties.
Conditions of Probation. The conditions of probation that courts must impose for an impaired driving offense are clarified. In a case where an offender is on probation, the court must impose conditions of probation that prohibits an offender from: (1) driving without "both" a valid license and liability insurance; and (2) driving or being in physical control of a vehicle while having a THC concentration of 5.0 nanograms or higher concentration in his or her system within two hours of driving.
Arrest Without Warrant. A police officer has the authority to make an arrest and take into custody, pending release on bail, personal recognizance, or a court order, when the officer has probable cause to believe that the defendant has committed a DUI/PC offense and the person has had at least one prior DUI offense within 10 years.
The list of traffic violations where a law enforcement officer can make an arrest upon probable cause is expanded to include situations where: (1) a juvenile under the age of 21 years old is driving or is in physical control of a vehicle after consuming alcohol; and (2) a person is driving, operating, or in physical control of a commercial motor vehicle while having alcohol or THC in his or her system.
Establishment of Driving Under the Influence Courts. Municipalities are authorized to independently establish and operate DUI courts or enter into cooperative agreements with counties that have DUI courts to provide DUI court services.
Deferred Sentences. Deferred sentences are not available for a gross misdemeanor DUI/PC offense and courts are explicitly prohibited from granting a deferred sentence for any DUI/PC gross misdemeanor offense.
Sentencing Enhancements. Attempting to Elude a Police Vehicle: The sentencing enhancement for Attempting to Elude a Police Vehicle offense is made mandatory, must be served in total confinement, and it must run consecutively to other sentencing penalties.
Aggravating Circumstances. Driving on the Wrong Side of the Road: A court may consider as an aggravating factor that during the commission of the offense, the defendant was driving in the opposite direction of the normal flow of traffic on a multi-lane highway with a posted speed limit of 45 miles per hour or greater.
Ignition Interlock Devices. Ignition Interlocks for Impounded Vehicles: When a driver is arrested for a DUI/PC offense, and the driver is at least one of the registered owners of the vehicle that is impounded, the vehicle may not be released from impoundment without the installation of an IID. The IID must be installed by at least one of the vehicle's owners regardless of who actually redeems the vehicle. At least one of the registered owners must arrange for the installation of the IID at the place of the vehicle's impoundment. After the vehicle is released, one of the registered owners must take the vehicle to the IID vendor's place of business within 24 hours for proper calibration of the IID. The IID must remain on the vehicle pending the arrested driver's acquittal, dismissal, conviction, or other resolution of the charges. If the driver is acquitted or the charges or dismissed then the courts must require the removal of the IID from the vehicle.
Ignition Interlock Re-test: An ignition interlock restriction imposed on a person must remain in effect until the DOL receives confirmation from the IID vendor stating that the offender has not tried to start the vehicle in the four previous months with an illegal BAC level, unless a subsequent test was performed within 10 minutes which registers a lower BAC level and a digital image confirms the same person provided both samples.
Ignition Interlock Certification Form: The WSP is authorized to create by rule the statement for certifying IID. As a result, the ignition interlock certification form referencing the federal register and the federal standards is removed from the WSP's statute.
Driver's License. Marking of Drivers' Licenses: The statutory provisions that require the DOL, law enforcement, and the courts to mark the driver's license of a person arrested, charged, or convicted of an impaired driving offense are eliminated.
Vertically-Oriented Licenses: The DOL must produce and issue vertically oriented driver's license and identicards for any person with two or more DUI or PC convictions.
Commercial Driver's License: A person is disqualified from driving a commercial motor vehicle for a minimum of one year if a report is received by the DOL that he or she has been convicted of driving a motor vehicle with any measureable amount of THC in the person's system. Law enforcement must also issue an out-of-service order against a person who drives or is in physical control of a commercial vehicle while having THC in his or her system.
Target Zero. Courts must impose a penalty assessment of $100 on any person who is convicted for a violation of: Vehicular Homicide; Vehicular Assault; Hit and Run involving death, injury, a deceased person, or damage to unattended property; Driving While License Suspended; Attempting to Elude a Police Vehicle; DUI; Racing of Vehicles on Highway; Circumventing and IID; Reckless Driving; DUI and PC while under age 21 years; and negligent driving in the first degree.
The penalty assessments must be forwarded to the city or county in which the court imposing the assessment is located and must be used solely for the purposes of funding the following programs according to the following priorities:
priority one: traffic safety taskforces that provide education, prevention, and enforcement programs designed to reduce motor vehicle related deaths and serious injuries; or
priority two: effective strategies to reduce motor vehicle related deaths and serious injuries, such as those listed in the Target Zero safety plan.
If a jurisdiction may establish or contract for a program if it does not already have one.
Statewide 24/7 Sobriety Program. The Statewide 24/7 Sobriety Program is established and administered by the Attorney General, effective January 1, 2015. The Attorney General may adopt rules for the administration of the Statewide 24/7 Sobriety Program to: (1) regulate the nature, method, and manner of testing; (2) provide for procedures and apparatuses for testing including electronic monitoring devices and IID; and (3) require the submission of reports and information by law enforcement agencies within this state. The 24/7 Sobriety Account (Account) is created to defray the costs of operating the program. The Account can receive funds from a variety of sources, including activation and users fees. Fee ranges are set by rule annually. Funds from the Account are used to defray reoccurring costs of the program. Fees collected by the DOC are deposited in the general fund.
The program may include twice-per-day testing, drug-patch testing, urinalysis testing, electronic monitoring devices, electronic alcohol monitoring device testing, or IID. Participants payment of fees are collected to fund the program.
Each county, through its sheriff, may participate in the Statewide 24/7 Sobriety Program. If a sheriff is unwilling or unable to participate in the Statewide 24/7 Sobriety Program, the sheriff may designate an entity willing to provide the service. If twice-per-day testing is ordered, the sheriff, or designated entity, must establish the testing locations and times for each county but must have at least one location and two daily testing times approximately 12 hours apart.
The court may condition any bond, pretrial release, granting of a suspended imposition of sentence, suspended execution of sentence, probation, or release upon participation in the Statewide 24/7 Sobriety Program and payment of associated costs and expenses. The DOC may condition release upon participation in the Statewide 24/7 Sobriety Program and payment of associated costs and expenses.
Other Amendments. Subtitles and other technical corrections are made to the DUI and PC statutes relating alcohol and drug violations. Marijuana and THC are also added to various statutes dealing with DUI and PC.
Fiscal Note: Requested on April 14, 2013.
Effective Date: This bill takes effect 90 days after adjournment of the session in which the bill is passed, except for sections 30–33 and 35–43 relating to the establishment of the Statewide 24/7 Sobriety Program, which takes effect January 1, 2015.