Brief Summary of Bill

Requires the courts to notify the Department of Licensing (DOL) in instances where a defendant is required to use an ignition interlock device (IID) and in instances where such restrictions are lifted.
Requires an IID restricted driver, who has agreed not to drive, to sign an affidavit of non-driving which must be filed with the court.
Eliminates the statutory provisions that prohibited an IID license applicant from appealing a license revocation.
Requires IIDs to have technology capable of providing global positioning system coordinates.
Removes statutory references to the testing of a person's breath for purposes of determining the presence of drugs under the Implied Consent statute.
Clarifies the statutes that prohibit law enforcement officers from testing a person's blood suspected of driving under the influence (DUI) unless it is pursuant to a search warrant, a valid waiver of the warrant requirement, when exigent circumstances exist, or under any other authority of law.
Redefines and expands the elements for the crime of Tampering with an IID.
Makes it a traffic infraction for a person to have an open container of marijuana in the main compartment of a vehicle.
Amends the definition of a "prior offense" in the Impaired Driving statute to include DUI-related offenses as they relate to being under the influence of alcohol or drugs.
Provides that DUI-related sentence enhancements are mandatory, must be served in total confinement, must run consecutively to other sentencing provisions, and are not eligible for earned release time.
Authorizes the DOL to furnish an abstract of an individual's driving record to an individual's named attorney of record.
Provides that if any person to whom the right of control for the disposition of human remains is vested has been arrested for Vehicular Homicide in connection with the decedent's death, the right of control is relinquished.
Requires that any sentence for a felony DUI/Physical Control (PC) offense must be served consecutively to any sentence imposed for Circumventing an IID or Operating a Motor Vehicle without a required IID.

Background:

Ignition Interlocks.

Pretrial Conditions of Release: As a condition of release from custody before arraignment or trial, a defendant charged with a Driving Under the Influence (DUI) offense, who has a prior DUI-related offense, must be ordered to have a functioning ignition interlock device (IID) installed on his or her vehicle with proof filed with the court within five business days of the date of release, or comply with the 24/7 Sobriety Program, or both. A court must authorize the removal of the IID upon acquittal or dismissal of charges.

Ignition Interlock License: Any person with a State of Washington driver's license who is convicted of a DUI offense or has their license suspended or revoked for a DUI, Physical Control (PC), or Vehicular Homicide while under the influence of alcohol or drugs offense, can apply for an ignition interlock driver's license (IIDL), which allows the licensee to lawfully operate a vehicle during the revocation.

Hearing and Appeal: The IIDL statute precludes a licensee who obtains an IIDL from thereafter asserting the statutory right to judicial appeal from the administrative decision imposing the revocation. The Washington State Court of Appeals ruled (in Nielsen v. Department of Licensing) that the statute that requires a driver to waive his or her right to appeal a license suspension or revocation order from the Department of Licensing (DOL) in order to receive an IIDL is unconstitutional.

Standards: The Washington State Patrol (WSP), by rule, requires that IIDs meet certain specifications and also provides standards for the certification, installation, repair, and removal of IIDs. All IIDs must employ fuel cell technology and when reasonably available in the area, IIDs must include technology capable of taking a photo identification of the person giving the breath sample.

Implied Consent.

Under the implied consent laws, a driver is presumed to have given consent to a breath alcohol concentration (BAC) test if the driver is arrested for DUI. As such, any person who operates a vehicle in Washington is deemed to have given consent to a test of his or her breath for the purposes of determining the BAC, tetrahydrocannabinol (THC) concentration, or presence of any drug. However, presently THC and other drugs cannot be measured or tested with a breath test.

Missouri v. McNeely.

The Fourth Amendment prohibits unreasonable search and seizures. A blood draw is a search, however, a blood draw is only constitutional when it is consensual, pursuant to a search warrant, or in exigent circumstances. In the Missouri v. McNeely case, the United States Supreme Court found that taking a person's blood without warrant violates a person's Fourth Amendment right and the exigency exception to the warrant requirement generally does not apply in these cases (since metabolization of alcohol in the body does not by itself create an exigent circumstance). As a result, routine blood draws from a person suspected of DUI without consent or a warrant are unconstitutional, unless there is some special complicating factor to justify exigency.

Tampering With an IID.

If a person is restricted to driving only vehicles equipped with an IID, it is a gross misdemeanor offense for that person to tamper with the device. It is also a gross misdemeanor offense for a person who knowingly assists another person who is restricted to the use of an IID equipped vehicle to circumvent the device.

Marijuana Open Container Statute.

It is a violation of the open container law, to possess a bottle or other container containing an alcoholic beverage while in a vehicle upon a highway, if the container has been opened, the seal broken, or the contents partially removed. Such containers must be kept in the trunk of the vehicle or in some other area of the vehicle not normally occupied by the driver or passengers if the vehicle does not have a trunk. A utility compartment or glove compartment is deemed to be within the area occupied by the driver and passengers. The statute does not address containers containing marijuana.

Crossing of a Lane.

The Washington Court of Appeals in State v. Tonelli-Prado, 145 Wn. App. 646 (Div. I, 2008) addressed the issue of whether a brief crossing of a traffic lane is a sufficient basis to conduct a traffic seizure under RCW 46.61.140 for a lane violation statute. That statute defines what is a lane travel violation by providing that a "vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." The court found that brief incursions are to be expected when driving and therefore are not grounds for a traffic infraction as long as there is no danger to other vehicles.

Conditions of Probation.

Whenever a defendant receives a jail sentence for a DUI offense, the court must also impose as a mandatory condition of probation that the person: (1) not drive a vehicle in the State of Washington without a valid driver's license and proof of liability insurance; (2) not drive or be in physical control of a motor vehicle while having an alcohol concentration of 0.08 or more or of a THC concentration of 5.00 nanograms, within two hours after driving; and (3) not to refuse to submit to a breath or blood test to determine alcohol or drug concentration upon request of a law enforcement officer. A violation of probation can result in 30 days of incarceration and a 30-day suspension of a person's driver's license.

Prior Offense.

Under the Impaired Driving Statute, a DUI or PC offense is punishable as a gross misdemeanor. It becomes a class C felony if a person has four or more prior offenses within 10 years. A "prior offense" is defined in statute and includes but is not limited to such crimes as operating a vehicle, aircraft, watercraft, or vessel while under the influence of alcohol or drugs.

Sentence Enhancements.

Under the Sentencing Reform Act, 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 the following:

Attempting to Elude a Police Vehicle: If an offender committed the crime of Attempting to Elude a Pursuing Police Vehicle and 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.

Vehicular Homicide: If an individual committed a Vehicular Homicide offense, while under the influence of intoxicating liquor or drugs, then the court must impose an additional two years for each prior DUI-related offense.

Minor Passenger in Vehicle: If an individual committed a felony DUI/PC offense, Vehicular Assault DUI, or Vehicular Homicide DUI, and a child under the age of 16 years was present in the vehicle at the time of the offense, a 12-month sentence enhancement for each child in the vehicle must be added to the individual's standard incarceration sentence.

Abstract of Driving Record.

The DOL maintains a driving record on every person licensed to operate a motor vehicle in Washington. These records or driver abstracts, contain information relating to a person's driving record which include: accident information, driving status, and information about traffic citations.

The DOL charges a fee to obtain a driver's abstract and is restricted to the following persons and uses: the individual named in the abstract; employers or prospective employers relating to driving as a condition of employment; volunteer organizations where driving is required; transit authorities for volunteer vanpool drivers; insurance carriers for an individual covering the period of not more than the last three years; state colleges, universities, agencies or units of local government for employment and risk management purposes authorized to self-insure; the Office of Superintendent of Public Instruction for school bus drivers; and in impaired driving related offenses to city attorneys and county prosecuting attorneys.

Disposition of Remains.

A person has the right to control the disposition of his or her own remains. This can be accomplished by making a pre-arrangement with a licensed funeral establishment or cemetery authority or by executing a written document signed by the decedent in the presence of a witness that expresses the decedent's wishes regarding the place or method of disposition of his or her remains.

If the decedent has not made a pre-arrangement or given directions for the disposition of his or her remains, then the right to control the disposition of the remains vests in the following people in the order named:

the person designated by a service member if the person is designated on the service member's United States Department of Defense record of emergency, or its successor form, and if the service member died while serving in military service;
the designated agent of the decedent indicated in a written document signed and dated by the decedent in the presence of a witness;
the surviving spouse or state-registered domestic partner;
the majority of the surviving adult children;
the surviving parents;
the majority of the surviving siblings; and
a court-appointed guardian for the person at the time of the person's death.

If the person to whom the right of control has been vested has been arrested or charged with Murder in the first or second degree or Manslaughter in the first of second degree in connection with the decedent's death, then the right of control is relinquished and such rights are statutorily passed on to the next person as specified above.

Consecutive Sentences.

The sentencing court has discretion when sentencing offenders in misdemeanor and gross misdemeanor cases. Although there are some exceptions, generally, sentences for multiple felony offenses set at one sentencing hearing are served concurrently unless there are two or more separate serious violent offenses or weapon offenses. In those cases, the sentences are served consecutively, unless an exceptional sentence is entered.

Physical Control.

The fact that a person charged with a PC violation is or has been entitled to use a drug does not constitute a defense against any charge of violating the law.

Summary of Bill:

Ignition Interlocks.

Pretrial Conditions of Release: In instances where a defendant is required to have a functioning IID installed on his or her vehicle as a condition of pre-trial release, the court must immediately notify the DOL when the IID restriction is imposed as a condition of release. The DOL subsequently must add a notation to the person's driving record noting the restriction. Once the IID restriction is lifted, the court must immediately notify the DOL regarding the lifting of the restriction and the DOL must immediately release any notation on the person's driving record relating to the IID restriction.

In an instance when an IID restriction imposed as a condition of release is cancelled, the court must provide the defendant with a written order confirming release of the restriction. The written order must serve as proof of release of the restriction until which time the DOL updates the driving record. It is a crime for a restricted driver to drive without an IID unless the notation on his or her driving record is a result from a restriction imposed as a condition of release and the restriction was released by the court prior to driving.

In instances where a defendant has agreed not to drive, he or she must sign an affidavit agreeing not to drive and the affidavit must be filed with the court within five business days of the date of release.

Ignition Interlock License: Any person with any valid driver's license who is convicted of a DUI offense or has their license suspended or revoked for a DUI-related offense, can apply for an IIDL. In addition, any person convicted of Vehicular Homicide or Vehicular Assault, where reckless or disregard for the safety of others is an element of the offense, may also apply for an IIDL when the charge was originally filed as a violation committed while under the influence of alcohol or drugs.

Hearing and Appeal: The statutory provisions that prohibited an IID licensee from appealing an administrative decision imposing a license revocation is eliminated, thereby allowing such person to request a hearing to appeal his or her license suspension or revocation.

Standards: All IIDs must have technology capable of providing the global positioning system (GPS) coordinates at the time of each test sequence. The coordinates must be displayed within the data log that is downloaded by the manufacturer and must be made available to the WSP to be used for circumvention and tampering investigations.

Implied Consent.

References to the testing of a person's breath for purposes of determining the THC concentration or the presence of any drugs are removed from the Implied Consent statute.

Missouri v. McNeely.

The references to mandatory blood draws are removed as they relate to implied consent and denying or revoking of a person's driver's license.

For purposes of a DOL hearing due to a license revocation, the hearing must consider whether the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxication of liquor or drugs, and if a test was administered, whether the arresting officer administered the breath or blood test pursuant to a search warrant, a valid waiver of the warrant requirement when exigent circumstances exist, or under any other authority of law.

Where a person is found in actual physical control of a vehicle while under the influence of liquor or drugs, the person may petition the DOL hearing officer to apply the affirmative defense. It is an affirmative defense that must be proven 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 BAC to be over the legal limit.

Tampering With an IID.

The elements for the crime of Tampering with or Circumventing an IID are expanded to include when a restricted driver: (1) uses or requests another person to use a filter or other device to circumvent the IID or to start or operate the vehicle to allow the restricted driver to operate the vehicle; or (2) has, allows, directs, authorizes, or requests another person to tamper with, modify, blow, or otherwise exhale into the device in order to circumvent the device to allow the restricted driver to operate the vehicle.

Marijuana Open Container Statute.

It is a traffic infraction for a person to: (1) have a container containing marijuana in a vehicle that is upon a highway unless the container is kept in the trunk of the vehicle or in some other area of the vehicle not normally occupied by the driver or passengers if the vehicle does not have a trunk; (2) smoke or ingest marijuana in a vehicle when the vehicle is upon the public highway; (3) incorrectly label the original container of marijuana and to then violate the statutory provision regulating having a container containing marijuana in a vehicle; or (4) place marijuana in a container specifically labeled by the manufacturer of the container as containing a non-marijuana substance. It is not a traffic infraction if an adult driver possesses marijuana in the main compartment of a vehicle as long as the marijuana is sealed in the same labeled, commercial packaging that contained the marijuana at the time of purchase from a licensed retailer.

Crossing of a Lane Violation.

The statute referencing a lane violation is clarified by requiring that a driver must drive a vehicle entirely within a single lane (the reference to "as nearly as practicable" is eliminated). An affirmative defense is established to a traffic infraction for a lane travel violation, that the driver's vehicle crossed into another lane as a result of an act, omission, or occurrence outside of the driver's immediate control and only to the minimum extent reasonably necessary under the circumstances.

Conditions of Probation.

The mandatory conditions of probation for a DUI offense are expanded to include the requirement that a defendant must drive a motor vehicle with an installed functioning IID as required by the DOL.

Prior Offense.

The definition of a "prior offense" in the impaired driving statute is expanded and clarified to include Minor DUI, Assault by Watercraft-while under the influence of alcohol or drugs, and Homicide by Watercraft-while under the influence of alcohol or drugs. It also includes those crimes (Operation of a Vessel, Operation of an Aircraft, Assault by Watercraft, and Homicide by Watercraft) committed in a reckless manner when the original charge (which was pled down to a lesser charge) was filed as a violation or equivalent violation of being under the influence of liquor or drugs.

Sentence Enhancement.

The sentencing enhancements imposed for Attempting to Elude a Police Vehicle, Vehicular Homicide, Vehicular Assault, and committing a DUI-related offense with a child passenger in the vehicle are mandatory, must be served in total confinement, must run consecutively to other sentencing provisions, and are not eligible for good time credits or earned release time.

Abstract of Driving Record.

The DOL may furnish an abstract of an individual's driving record to that individual's named attorney of record.

Disposition of Remains.

The list of persons who have the right to control the disposition of remains is amended to provide that if such person (to whom the right of control has been vested) has been arrested or charged with a Vehicular Homicide offense in connection with the decedent's death, the right of control is relinquished and such rights are passed on to the next person as ordered and specified in statute.

Consecutive Sentences.

Sentences for a felony level DUI/PC offense must be served consecutively to any sentences imposed for Circumventing an IID or Operating a Motor Vehicle without a required IID. Sentences for Circumventing an IID or Operating a Motor Vehicle without a required IID must also served consecutively.

Physical Control.

As part of a DOL hearing, an affirmative defense is established for a PC offense to an action being brought for a license revocation that the person moved the vehicle safely off the roadway prior to being pursued by a law enforcement officer.