State of Washington
67th Legislature
2021 Regular Session
ByHouse Civil Rights & Judiciary (originally sponsored by Representatives J. Johnson, Frame, Entenman, Sells, Taylor, Santos, Stonier, Ormsby, Lekanoff, Davis, Hackney, Macri, Callan, Chopp, Pollet, Ryu, Goodman, Berg, Ramos, Bergquist, Gregerson, Wicks, Peterson, Thai, Dolan, Bateman, Simmons, Fitzgibbon, and Valdez)
AN ACT Relating to juvenile access to attorneys when contacted by law enforcement; amending RCW 13.40.140, 2.70.020, and 13.40.020; adding a new section to chapter 13.40 RCW; adding a new section to chapter 2.70 RCW; creating a new section; and providing an effective date.
NEW SECTION.  Sec. 1. A new section is added to chapter 13.40 RCW to read as follows:
(1) Except as provided in subsection (4) of this section, law enforcement shall provide a juvenile with access to an attorney for consultation, which may be provided in person, by telephone, or by video conference, before the juvenile waives any constitutional rights if a law enforcement officer:
(a) Questions a juvenile after providing a Miranda warning;
(b) Detains a juvenile based on reasonable suspicion of involvement in criminal activity; or
(c) Requests that the juvenile provide consent to an evidentiary search of the juvenile or the juvenile's property, dwellings, or vehicles under the juvenile's control.
(2) The consultation required by subsection (1) of this section may not be waived.
(3) Statements made by a juvenile after the juvenile is contacted by a law enforcement officer in a manner described under subsection (1) of this section are not admissible in a juvenile offender or adult criminal court proceeding, unless:
(a) The juvenile has been provided with access to an attorney for consultation; and the juvenile provides an express waiver knowingly, intelligently, and voluntarily made by the juvenile after the juvenile has been fully informed of the rights being waived as required under RCW 13.40.140;
(b) The statement is for impeachment purposes; or
(c) The statement was made spontaneously.
(4) A law enforcement officer may question a juvenile without following the requirement in subsection (1) of this section if:
(a) The law enforcement officer believes the juvenile is a victim of trafficking as defined in RCW 9A.40.100; however, any information obtained from the juvenile by law enforcement pursuant to this subsection cannot be used in any prosecution of that juvenile; or
(b)(i) The law enforcement officer believes that the information sought is necessary to protect an individual's life from an imminent threat;
(ii) A delay to allow legal consultation would impede the protection of an individual's life from an imminent threat; and
(iii) Questioning by the law enforcement officer is limited to matters reasonably expected to obtain information necessary to protect an individual's life from an imminent threat.
(5) After the juvenile has consulted with legal counsel, the juvenile may advise, direct a parent or guardian to advise, or direct legal counsel to advise the law enforcement officer that the juvenile chooses to assert a constitutional right. Any assertion of constitutional rights by the juvenile through legal counsel must be treated by a law enforcement officer as though it came from the juvenile. The waiver of any constitutional rights of the juvenile may only be made according to the requirements of RCW 13.40.140.
(6) For purposes of this section, the following definitions apply:
(a) "Juvenile" means any individual who is under the chronological age of 18 years; and
(b) "Law enforcement officer" means any general authority, limited authority, or specially commissioned Washington peace officer or federal peace officer as those terms are defined in RCW 10.93.020, including school resource officers as defined in RCW 28A.320.124 and other public officers who are responsible for enforcement of fire, building, zoning, and life and safety codes.
Sec. 2. RCW 13.40.140 and 2014 c 110 s 2 are each amended to read as follows:
(1) A juvenile shall be advised of ((his or her))the juvenile's rights when appearing before the court.
(2) A juvenile and ((his or her))the juvenile's parent, guardian, or custodian shall be advised by the court or its representative that the juvenile has a right to be represented by counsel at all critical stages of the proceedings. Unless waived, counsel shall be provided to a juvenile who is financially unable to obtain counsel without causing substantial hardship to himself or herself or the juvenile's family, in any proceeding where the juvenile may be subject to transfer for criminal prosecution, or in any proceeding where the juvenile may be in danger of confinement. The ability to pay part of the cost of counsel does not preclude assignment. In no case may a juvenile be deprived of counsel because of a parent, guardian, or custodian refusing to pay therefor. The juvenile shall be fully advised of ((his or her))the juvenile's right to an attorney and of the relevant services an attorney can provide.
(3) The right to counsel includes the right to the appointment of experts necessary, and the experts shall be required pursuant to the procedures and requirements established by the supreme court.
(4) Upon application of a party, the clerk of the court shall issue, and the court on its own motion may issue, subpoenas requiring attendance and testimony of witnesses and production of records, documents, or other tangible objects at any hearing, or such subpoenas may be issued by an attorney of record.
(5) All proceedings shall be transcribed verbatim by means which will provide an accurate record.
(6) The general public and press shall be permitted to attend any hearing unless the court, for good cause, orders a particular hearing to be closed. The presumption shall be that all such hearings will be open.
(7) In all adjudicatory proceedings before the court, all parties shall have the right to adequate notice, discovery as provided in criminal cases, opportunity to be heard, confrontation of witnesses except in such cases as this chapter expressly permits the use of hearsay testimony, findings based solely upon the evidence adduced at the hearing, and an unbiased fact finder.
(8) A juvenile shall be accorded the same privilege against self-incrimination as an adult and the protections provided in section 1 of this act. An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding may not be received in evidence at an adjudicatory hearing over objection. Evidence illegally seized or obtained, including evidence obtained in violation of section 1 of this act, may not be received in evidence over objection at an adjudicatory hearing to prove the allegations against the juvenile if the evidence would be inadmissible in an adult criminal proceeding. An extrajudicial admission or confession made by the juvenile out of court is insufficient to support a finding that the juvenile committed the acts alleged in the information unless evidence of a corpus delicti is first independently established in the same manner as required in an adult criminal proceeding.
(9) Statements, admissions, or confessions made by a juvenile in the course of a mental health or chemical dependency screening or assessment, whether or not the screening or assessment was ordered by the court, shall not be admissible into evidence against the juvenile on the issue of guilt in any juvenile offense matter or adult criminal proceeding, unless the juvenile has placed ((his or her))the juvenile's mental health at issue. The statement is admissible for any other purpose or proceeding allowed by law. This prohibition does not apply to statements, admissions, or confessions made to law enforcement, and may not be used to argue for derivative suppression of other evidence lawfully obtained as a result of an otherwise inadmissible statement, admission, or confession.
(10) Waiver of any right which a juvenile has under this chapter must be an express waiver intelligently made by the juvenile after the juvenile has been fully informed of the right being waived, including having access to an attorney for consultation if required under section 1 of this act.
(11) Whenever this chapter refers to waiver or objection by a juvenile, the word juvenile shall be construed to refer to a juvenile who is at least ((twelve))12 years of age. If a juvenile is under ((twelve))12 years of age, the juvenile's parent, guardian, or custodian shall give any waiver or offer any objection contemplated by this chapter.
Sec. 3. RCW 2.70.020 and 2012 c 257 s 1 are each amended to read as follows:
The director shall:
(1) Administer all state-funded services in the following program areas:
(a) Trial court criminal indigent defense, as provided in chapter 10.101 RCW;
(b) Appellate indigent defense, as provided in this chapter;
(c) Representation of indigent parents qualified for appointed counsel in dependency and termination cases, as provided in RCW 13.34.090 and 13.34.092;
(d) Extraordinary criminal justice cost petitions, as provided in RCW 43.330.190;
(e) Compilation of copies of DNA test requests by persons convicted of felonies, as provided in RCW 10.73.170;
(f) Representation of indigent respondents qualified for appointed counsel in sexually violent predator civil commitment cases, as provided in chapter 71.09 RCW; and
(g) Provide access to attorneys for juveniles contacted by a law enforcement officer for whom a legal consultation is required under section 1 of this act;
(2) Submit a biennial budget for all costs related to the office's program areas;
(3) Establish administrative procedures, standards, and guidelines for the office's program areas, including cost-efficient systems that provide for authorized recovery of costs;
(4) Provide oversight and technical assistance to ensure the effective and efficient delivery of services in the office's program areas;
(5) Recommend criteria and standards for determining and verifying indigency. In recommending criteria for determining indigency, the director shall compile and review the indigency standards used by other state agencies and shall periodically submit the compilation and report to the legislature on the appropriateness and consistency of such standards;
(6) Collect information regarding indigent defense services funded by the state and report annually to the advisory committee, the legislature, and the supreme court;
(7) Coordinate with the supreme court and the judges of each division of the court of appeals to determine how appellate attorney services should be provided.
The office of public defense shall not provide direct representation of clients.
NEW SECTION.  Sec. 4. A new section is added to chapter 2.70 RCW to read as follows:
Subject to the rules of discovery, the office of public defense is authorized to collect identifying information for any youth who speaks with a consulting attorney pursuant to section 1 of this act; provided, however, that such records are exempt from public disclosure.
Sec. 5. RCW 13.40.020 and 2019 c 444 s 9 are each amended to read as follows:
For the purposes of this chapter:
(1) "Assessment" means an individualized examination of a child to determine the child's psychosocial needs and problems, including the type and extent of any mental health, substance abuse, or co-occurring mental health and substance abuse disorders, and recommendations for treatment. "Assessment" includes, but is not limited to, drug and alcohol evaluations, psychological and psychiatric evaluations, records review, clinical interview, and administration of a formal test or instrument;
(2) "Community-based rehabilitation" means one or more of the following: Employment; attendance of information classes; literacy classes; counseling, outpatient substance abuse treatment programs, outpatient mental health programs, anger management classes, education or outpatient treatment programs to prevent animal cruelty, or other services including, when appropriate, restorative justice programs; or attendance at school or other educational programs appropriate for the juvenile as determined by the school district. Placement in community-based rehabilitation programs is subject to available funds;
(3) "Community-based sanctions" may include one or more of the following:
(a) A fine, not to exceed ((five hundred dollars))$500;
(b) Community restitution not to exceed ((one hundred fifty))150 hours of community restitution;
(4) "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the offender as punishment for committing an offense. Community restitution may be performed through public or private organizations or through work crews;
(5) "Community supervision" means an order of disposition by the court of an adjudicated youth not committed to the department or an order granting a deferred disposition. A community supervision order for a single offense may be for a period of up to two years for a sex offense as defined by RCW 9.94A.030 and up to one year for other offenses. As a mandatory condition of any term of community supervision, the court shall order the juvenile to refrain from committing new offenses. As a mandatory condition of community supervision, the court shall order the juvenile to comply with the mandatory school attendance provisions of chapter 28A.225 RCW and to inform the school of the existence of this requirement. Community supervision is an individualized program comprised of one or more of the following:
(a) Community-based sanctions;
(b) Community-based rehabilitation;
(c) Monitoring and reporting requirements;
(d) Posting of a probation bond;
(e) Residential treatment, where substance abuse, mental health, and/or co-occurring disorders have been identified in an assessment by a qualified mental health professional, psychologist, psychiatrist, co-occurring disorder specialist, or substance use disorder professional and a funded bed is available. If a child agrees to voluntary placement in a state-funded long-term evaluation and treatment facility, the case must follow the existing placement procedure including consideration of less restrictive treatment options and medical necessity.
(i) A court may order residential treatment after consideration and findings regarding whether:
(A) The referral is necessary to rehabilitate the child;
(B) The referral is necessary to protect the public or the child;
(C) The referral is in the child's best interest;
(D) The child has been given the opportunity to engage in less restrictive treatment and has been unable or unwilling to comply; and
(E) Inpatient treatment is the least restrictive action consistent with the child's needs and circumstances.
(ii) In any case where a court orders a child to inpatient treatment under this section, the court must hold a review hearing no later than ((sixty))60 days after the youth begins inpatient treatment, and every ((thirty))30 days thereafter, as long as the youth is in inpatient treatment;
(6) "Confinement" means physical custody by the department of children, youth, and families in a facility operated by or pursuant to a contract with the state, or physical custody in a detention facility operated by or pursuant to a contract with any county. The county may operate or contract with vendors to operate county detention facilities. The department may operate or contract to operate detention facilities for juveniles committed to the department. Pretrial confinement or confinement of less than ((thirty-one))31 days imposed as part of a disposition or modification order may be served consecutively or intermittently, in the discretion of the court;
(7) "Court," when used without further qualification, means the juvenile court judge(s) or commissioner(s);
(8) "Criminal history" includes all criminal complaints against the respondent for which, prior to the commission of a current offense:
(a) The allegations were found correct by a court. If a respondent is convicted of two or more charges arising out of the same course of conduct, only the highest charge from among these shall count as an offense for the purposes of this chapter; or
(b) The criminal complaint was diverted by a prosecutor pursuant to the provisions of this chapter on agreement of the respondent and after an advisement to the respondent that the criminal complaint would be considered as part of the respondent's criminal history. A successfully completed deferred adjudication that was entered before July 1, 1998, or a deferred disposition shall not be considered part of the respondent's criminal history;
(9) "Department" means the department of children, youth, and families;
(10) "Detention facility" means a county facility, paid for by the county, for the physical confinement of a juvenile alleged to have committed an offense or an adjudicated offender subject to a disposition or modification order. "Detention facility" includes county group homes, inpatient substance abuse programs, juvenile basic training camps, and electronic monitoring;
(11) "Diversion unit" means any probation counselor who enters into a diversion agreement with an alleged youthful offender, or any other person, community accountability board, youth court under the supervision of the juvenile court, or other entity with whom the juvenile court administrator has contracted to arrange and supervise such agreements pursuant to RCW 13.40.080, or any person, community accountability board, or other entity specially funded by the legislature to arrange and supervise diversion agreements in accordance with the requirements of this chapter. For purposes of this subsection, "community accountability board" means a board comprised of members of the local community in which the juvenile offender resides. The superior court shall appoint the members. The boards shall consist of at least three and not more than seven members. If possible, the board should include a variety of representatives from the community, such as a law enforcement officer, teacher or school administrator, high school student, parent, and business owner, and should represent the cultural diversity of the local community;
(12) "Foster care" means temporary physical care in a foster family home or group care facility as defined in RCW 74.15.020 and licensed by the department, or other legally authorized care;
(13) "Institution" means a juvenile facility established pursuant to chapters 72.05 and 72.16 through 72.20 RCW;
(14) "Intensive supervision program" means a parole program that requires intensive supervision and monitoring, offers an array of individualized treatment and transitional services, and emphasizes community involvement and support in order to reduce the likelihood a juvenile offender will commit further offenses;
(15) "Juvenile," "youth," and "child" mean any individual who is under the chronological age of ((eighteen))18 years and who has not been previously transferred to adult court pursuant to RCW 13.40.110, unless the individual was convicted of a lesser charge or acquitted of the charge for which he or she was previously transferred pursuant to RCW 13.40.110 or who is not otherwise under adult court jurisdiction;
(16) "Juvenile offender" means any juvenile who has been found by the juvenile court to have committed an offense, including a person ((eighteen))18 years of age or older over whom jurisdiction has been extended under RCW 13.40.300;
(17) "Labor" means the period of time before a birth during which contractions are of sufficient frequency, intensity, and duration to bring about effacement and progressive dilation of the cervix;
(18) "Local sanctions" means one or more of the following: (a) 0-30 days of confinement; (b) 0-12 months of community supervision; (c) 0-150 hours of community restitution; or (d) $0-$500 fine;
(19) "Manifest injustice" means a disposition that would either impose an excessive penalty on the juvenile or would impose a serious, and clear danger to society in light of the purposes of this chapter;
(20) "Miranda warning" means a verbal warning provided by a law enforcement officer advising the individual that the individual has the right to remain silent, the right to consult with legal counsel and have legal counsel present during questioning, and the right to have legal counsel appointed if the individual cannot afford legal counsel;
(21) "Monitoring and reporting requirements" means one or more of the following: Curfews; requirements to remain at home, school, work, or court-ordered treatment programs during specified hours; restrictions from leaving or entering specified geographical areas; requirements to report to the probation officer as directed and to remain under the probation officer's supervision; and other conditions or limitations as the court may require which may not include confinement;
(((21)))(22) "Offense" means an act designated a violation or a crime if committed by an adult under the law of this state, under any ordinance of any city or county of this state, under any federal law, or under the law of another state if the act occurred in that state;
(((22)))(23) "Physical restraint" means the use of any bodily force or physical intervention to control a juvenile offender or limit a juvenile offender's freedom of movement in a way that does not involve a mechanical restraint. Physical restraint does not include momentary periods of minimal physical restriction by direct person-to-person contact, without the aid of mechanical restraint, accomplished with limited force and designed to:
(a) Prevent a juvenile offender from completing an act that would result in potential bodily harm to self or others or damage property;
(b) Remove a disruptive juvenile offender who is unwilling to leave the area voluntarily; or
(c) Guide a juvenile offender from one location to another;
(((23)))(24) "Postpartum recovery" means (a) the entire period a woman or youth is in the hospital, birthing center, or clinic after giving birth and (b) an additional time period, if any, a treating physician determines is necessary for healing after the youth leaves the hospital, birthing center, or clinic;
(((24)))(25) "Probation bond" means a bond, posted with sufficient security by a surety justified and approved by the court, to secure the offender's appearance at required court proceedings and compliance with court-ordered community supervision or conditions of release ordered pursuant to RCW 13.40.040 or 13.40.050. It also means a deposit of cash or posting of other collateral in lieu of a bond if approved by the court;
(((25)))(26) "Respondent" means a juvenile who is alleged or proven to have committed an offense;
(((26)))(27) "Restitution" means financial reimbursement by the offender to the victim, and shall be limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical treatment for physical injury to persons, lost wages resulting from physical injury, and costs of the victim's counseling reasonably related to the offense. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses. Nothing in this chapter shall limit or replace civil remedies or defenses available to the victim or offender;
(((27)))(28) "Restorative justice" means practices, policies, and programs informed by and sensitive to the needs of crime victims that are designed to encourage offenders to accept responsibility for repairing the harm caused by their offense by providing safe and supportive opportunities for voluntary participation and communication between the victim, the offender, their families, and relevant community members;
(((28)))(29) "Restraints" means anything used to control the movement of a person's body or limbs and includes:
(a) Physical restraint; or
(b) Mechanical device including but not limited to: Metal handcuffs, plastic ties, ankle restraints, leather cuffs, other hospital-type restraints, tasers, or batons;
(((29)))(30) "Screening" means a process that is designed to identify a child who is at risk of having mental health, substance abuse, or co-occurring mental health and substance abuse disorders that warrant immediate attention, intervention, or more comprehensive assessment. A screening may be undertaken with or without the administration of a formal instrument;
(((30)))(31) "Secretary" means the secretary of the department;
(((31)))(32) "Services" means services which provide alternatives to incarceration for those juveniles who have pleaded or been adjudicated guilty of an offense or have signed a diversion agreement pursuant to this chapter;
(((32)))(33) "Sex offense" means an offense defined as a sex offense in RCW 9.94A.030;
(((33)))(34) "Sexual motivation" means that one of the purposes for which the respondent committed the offense was for the purpose of ((his or her))the respondent's sexual gratification;
(((34)))(35) "Surety" means an entity licensed under state insurance laws or by the state department of licensing, to write corporate, property, or probation bonds within the state, and justified and approved by the superior court of the county having jurisdiction of the case;
(((35)))(36) "Transportation" means the conveying, by any means, of an incarcerated pregnant youth from the institution or detention facility to another location from the moment she leaves the institution or detention facility to the time of arrival at the other location, and includes the escorting of the pregnant incarcerated youth from the institution or detention facility to a transport vehicle and from the vehicle to the other location;
(((36)))(37) "Violation" means an act or omission, which if committed by an adult, must be proven beyond a reasonable doubt, and is punishable by sanctions which do not include incarceration;
(((37)))(38) "Violent offense" means a violent offense as defined in RCW 9.94A.030;
(((38)))(39) "Youth court" means a diversion unit under the supervision of the juvenile court.
NEW SECTION.  Sec. 6. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2021, in the omnibus appropriations act, this act is null and void.
NEW SECTION.  Sec. 7. This act takes effect January 1, 2022.
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