2008 DUI Legislative Update
What Has the World Come To? A DUI Law That Helps the Accused.
By Geoffrey Burg
In a radical departure from past policy House Bill 3254 helps our DUI clients. It lessens the impact of DUI convictions and administrative suspensions by creating an "Ignition Interlock License" or "IIL".
This new type of license effectively does away with all DUI license suspensions if our clients install an ignition interlock on their personal vehicles. This law also "cleans up" some of the language regarding the felony DUI law, making it a felony DUI if a person has an out of state conviction that would have made it a felony DUI in Washington State.
This article discusses the history of the bill and provides questions and answers to some of the more common issues attorneys should be aware of when advising clients. Since this law is so new, I offer some of my opinions on how I plan on advising my clients. Once the law becomes effective and realities of it come into place, my opinions may change. I look forward to lively discussions about this bill and any angles I may have missed.
HISTORY OF HB 3254
This law was originally introduced as an "Ignition Interlock License bill." The idea behind it was to keep the driving public legally licensed and insured. It takes a practical look at a problem in society - the reality that people with a DUI related license suspension will drive whether or not properly licensed. To cure this, it makes all DUI offenders who have lost, or will lose, their license eligible to drive once they install an ignition interlock on their car and purchase "SR 22" insurance. With the backing of groups such as MADD, this idea caught on fast and the bill rapidly progressed through both houses.
On the eve of the bill making it out of committee Senator Hargrove added an amendment creating a sweeping change in DUI law and policy. His amendment allowed first offense DUI offenders to petition for a deferred prosecution - even if they are not alcoholics, drug addicts, or suffer from mental health problems. To do this, the bill required an alcohol, drug and mental health evaluation, an ignition interlock for a year, SR 22 insurance and no criminal law violations during the five year probationary period. At the end of five years, the case would be dismissed if all conditions were met. This section did not change other parts of the deferred prosecution statute.
This bill passed out of committee and was approved unanimously by both houses. It was sent to the governor, where there was a lot of lobbying to veto the section amending deferred prosecutions. The deferred prosecution section was vetoed by the governor, but with her request to have it studied for future legislation. Fortunately the Ignition Interlock section was signed into law. This new law promises to provide a lot of relief to our DUI clients beginning in January, 2009.
IGNITION INTERLCOCK LICENSE - A NEW BREED OF LICENSE
What is an Ignition Interlock License (IIL)?
An IIL is a new type of driver's license. If your client loses his license because of a DUI conviction or an administrative hearing under 46.20.308 she can receive this license from the DOL. The main requirement for this license is an ignition interlock on all vehicles driven by your client. It is not necessary on work vehicles. There will be a fund set up to help indigent clients pay for an IIL. There will be no waiting periods for it - your client should not have any time without a license - refusals, first offenses, second offenses, etc. Your client will be required to have SR22 insurance.
My client has been arrested for DUI, will she be able to continue to drive?
Yes. Under the new IIL program there your client will be able to continue driving. She can effectively get around both the Washington State DUI criminal and administrative suspensions if she receives an IIL. It does not matter if she has a prior Washington State DUI suspension or if she refused the breath test - she still will be eligible for an IIL.
What must my client do to get an IIL?
To receive an IIL your client must send in an application to the Department of Licensing. There will be a fee for the application, as well as a monthly fee of $20 to help fund indigent citizens. She will also need to have an ignition interlock installed on any vehicle she drives (except work vehicles driven during working hours). She will also need SR 22 insurance. She is eligible for an IIL if her privilege to drive is not otherwise suspended and she does not have any vehicular assaults or vehicular homicides within the past seven years.
My client is indigent, will there be any assistance for her?
A fund will be created by the legislature with the Department of Licensing to help indigent people pay for the costs associated with installing, removing, and leasing the IID.
Should my client request an administrative hearing under RCW 46.20.308?
Yes. In my opinion, she should still request a DOL administrative hearing. The upside to requesting the hearing is that your client may win this hearing - saving a hit on the DOL abstract and preventing the need for an IIL and SR 22 insurance. There is really no downside to requesting the hearing (other than the $200 hearing request fee). If after reviewing the police report it looks like your client is going to lose the hearing, then she can just apply for an IIL. Once the IIL is granted your client will lose the right to the hearing and any appeal.
How long does my client have to request an administrative hearing under RCW 46.20.308?
This has now changed - 20 days (no longer 30) is the new time period.
My client's license was suspended/revoked from an administrative hearing, can she still get an IIL?
Yes, she can still apply for and receive an IIL. Once the IIL received, she loses any right to an appeal of the 46.20.308 hearing.
When should my client request an IIL?
Your client should request an IIL at the earliest possible time. DOL has a history of taking a long time in processing applications for ORLs. It seems to makes sense to get the IIL application in early.
Will my client need "SR 22" insurance to obtain an IIL?
Will my client need an ignition interlock on her work vehicle?
No, it is not necessary on "vehicles owned by a person's employer and driven as a requirement of employment during working hours." There is a new requirement for the employer to provide a declaration stating that client's work requires her to operate a vehicle owned by the employer during working hours.
My client does not own a car, will she need an IIL?
No, not under the administrative suspension pursuant to 46.20.308. Your client would need to wait out the suspension. If your client is convicted of DUI, the court will order her to obtain an IIL. If she does not have a car, 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." Your client will be required to pay for this. In my opinion, your client may be better off buying a cheap car and putting an IID on it than having an alcohol detecting bracelet on her.
How long will it take to get an IIL?
This will be up to the Department of Licensing. If history with the ORL is any guide, expect it to take at least 2-4 weeks for the DOL to process this request.
What happens if my client violates the terms of my IIL?
It is a criminal offense punishable by up to 6 months in jail and up to a $250 fine.
How long will my client need to have an IIL?
For suspensions under 46.20.308, it will be for the length of the suspension. For criminal conviction suspensions it will be 1, 5 or 10 years going up each level based on prior IID orders.
My client has a Commercial Driver's License, will the IIL license help her?
No. Unfortunately those with a CDL will not benefit from the IIL. These people must still "win" their DOL hearings and avoid a DUI/Physical Control conviction to avoid CDL disqualification.
Geoffrey Burg, Seattle, is a criminal defense attorney with an emphasis in DUI and criminal traffic law.