WSR 04-01-019

PROPOSED RULES

WASHINGTON STATE PATROL


[ Filed December 5, 2003, 3:23 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-13-017 [03-19-017].

Title of Rule: WAC 204-96-010 Vehicle impounds.

Purpose: To change the rule from requiring mandatory impounds of vehicles driven by suspended drivers to allow impounds to be done at the officer's discretion.

Statutory Authority for Adoption: RCW 46.55.190.

Summary: The Washington Supreme Court decision of December 12, 2002, All Around Underground, Inc. v. Washington State Patrol; indicated that the current WAC should be revised. The revisions change the rule from requiring mandatory impounds of vehicles driven by suspended drivers to allow impounds to be done at the officer's discretion.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Ms. Christine Fox, P.O. Box 42614, Olympia, WA 98504-2614, (360) 753-3697.

Name of Proponent: Washington State Patrol, governmental.

Rule is necessary because of state court decision, Washington State Supreme Court No. 71848-2.

Explanation of Rule, its Purpose, and Anticipated Effects: This rule pertains to vehicle impounds in situations when a driver of a vehicle is arrested for driving under the influence, physical control of a vehicle under the influence, driving while license suspended or revoked, or driving under other license/permit while license suspended or revoked. The revisions change the rule from requiring mandatory impounds of vehicles driven by suspended drivers to allow impounds to be done at the officer's discretion.

Proposal Changes the Following Existing Rules: Rather than requiring officers to impound vehicles of suspended drivers and hold them for thirty days, officer discretion may now be used in these situations. The description of instances in which a vehicle may be released prior to the hold period was condensed. A uniform Washington state tow/impound and inventory record form is now available through the Office of the State Printer for use by all law enforcement agencies.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The changes do not place any requirements on small businesses.

RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Washington State Patrol Commercial Vehicle Division Conference Room, General Administration Building, 210 11th Avenue S.W., Room G21, Olympia, WA 98504, on February 11, 2004, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Christine Fox by February 4, 2004.

Submit Written Comments to: Ms. Christine Fox, P.O. Box 42614, Olympia, WA 98504-2614, fax (360) 586-8233, by February 11, 2004.

Date of Intended Adoption: February 18, 2004.

December 5[, 2003]

Ronal W. Serpas

Chief

OTS-6665.1


AMENDATORY SECTION(Amending WSR 01-05-098, filed 2/20/01, effective 3/23/01)

WAC 204-96-010   Vehicle impounds.   When a driver of a vehicle is arrested for a violation of:

RCW 46.61.502 Driving under the influence,
RCW 46.61.504 Physical control of vehicle under the influence,
RCW 46.20.342 Driving while license suspended or revoked,
((Operation of motor vehicle)) Driving under other license/permit ((prohibited)) while license suspended or revoked,
the arresting officer ((shall)) may, in his/her own discretion, considering reasonable alternatives, cause the vehicle to be impounded. When an arrest is made for violation of RCW 46.20.342 and the vehicle is a commercial vehicle, the driver of the vehicle is not the owner of the vehicle, the owner was not in the vehicle at the time, and the owner has not received a prior release under RCW 46.55.113(3) or 46.55.120 (1)(a)(ii), prior to impounding the vehicle the officer shall attempt in a reasonable and timely manner to contact the owner of the vehicle and may release the vehicle to the owner if the owner is reasonably available.

If the driver is arrested for a violation of RCW 46.20.342 (1)(c) (3rd degree suspended/revoked) and has no convictions for violations of RCW 46.20.342 in the past five years, the vehicle ((shall)) may be impounded, but no suspended driver hold shall be placed on the vehicle. If the driver is also the registered owner then the vehicle shall be held until all outstanding penalties, fines, and forfeitures owed by him/her are satisfied. The driver/registered owner must present proof from a court of law that he/she has no outstanding penalties, fines, or forfeitures.

If the driver is arrested for a violation of RCW 46.20.342 (1)(c) (3rd degree suspended/revoked) and has any prior convictions for violations of RCW 46.20.342 in the past five years, the vehicle ((shall)) may be held for thirty days.

If the driver of the vehicle is arrested for a violation of RCW 46.20.342 (1)(a) or (b) (1st or 2nd degree suspended/revoked) and has no convictions for violations of RCW 46.20.342 in the past five years, the vehicle ((shall)) may be held for thirty days.

If the driver of the vehicle is arrested for a violation of RCW 46.20.342 (1)(a) or (b) (1st or 2nd degree suspended/revoked) and has been convicted of a violation of RCW 46.20.342 (1)(a) or (b) in the past five years, the vehicle ((shall)) may be held for sixty days.

If the driver of the vehicle is arrested for a violation of RCW 46.20.342 (1)(a) or (b) (1st or 2nd degree suspended/revoked) and has been convicted of a violation of RCW 46.20.342 (1)(a) or (b) two or more times in the past five years, the vehicle ((shall)) may be held for ninety days.

The release of all vehicles impounded under this WAC shall be governed by RCW 46.55.120. Commercially rented vehicles may be impounded, however no suspended driver holds shall be placed upon ((the)) these vehicles. The rental company shall be notified by phone.

A vehicle may be released prior to the ((mandated)) hold period ((if the employer or spouse of the arrested driver establishes significant economic or personal hardship with the district commander of the district in which the vehicle was impounded. In making a hardship determination, the district commander shall consider public safety factors, including the driver's criminal history and driving record)) upon a showing of economic or personal hardship to the spouse of the operator, taking into consideration public safety factors, including the operator's criminal history and driving record; or that the owner of the vehicle was not the driver, the owner did not know that the driver's license was suspended or revoked, and the owner has not received a prior release under RCW 46.55.120 (1)(a)(ii) or 46.55.113(3). Release shall be denied in all other circumstances. All ((hardship)) release requests shall be in writing. Any denial or approval of a ((hardship)) release shall be in writing and shall include factors considered by the ((district commander)) impounding agency in reaching the decision.

((A vehicle may be released prior to the mandated hold period if the registered owner of a vehicle loaned to another person is able to demonstrate to the district commander of the district in which the vehicle was impounded that he/she had no knowledge that the person to whom the vehicle was loaned did not have valid driving privileges within the state of Washington, is willing to swear to this lack of knowledge under penalty of the perjury laws of the state of Washington and further agrees that this hardship determination, if allowed, is available only one time in the state of Washington. The registered owner of the loaned vehicle also agrees that he/she shall pay any and all towing fees, storage fees and administrative fees to the towing company before the vehicle is released. In addition, in the event a hardship is granted, the registered owner of the loaned vehicle agrees that he/she will comply with the conditions set forth on the form(s) provided by the Washington state patrol prior to loaning the vehicle to any individual in the future.)) A uniform Washington state tow/impound and inventory record form is available through the office of the state printer.

[Statutory Authority: RCW 46.55.113 and 46.55.120. 01-05-098, 204-96-010, filed 2/20/01, effective 3/23/01; 00-18-006, 204-96-010, filed 8/24/00, effective 8/24/00; 99-18-026, 204-96-010, filed 8/24/99, effective 9/24/99.]

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