New Legislation and Impaired Driving Related Crimes
Washington Defense Magazine, August 2011
By Patricia Fulton
The 2010-2011 legislative session was an active one for impaired driving related legislation with approximately sixteen different bills introduced which impacted driving under the influence and related crimes. The proposed bills included a couple of returning legislative favorites of questionable legality: requiring spIecial license plates for people convicted of DUI related crimes (HB 1955) and impaired driving checkpoints (HB 1912). Also introduced were a number of bills requiring that law enforcement or jail staff confirm the legal immigration status of people arrested for DUI or in custody on DUI related sentences (HB 1892; SB 5338). Thankfully, none of these bills made it out of committee.
The largest trend during the 2010-2011 legislative session involved proposals to increase penalties for impaired driving related crimes, either by increasing mandatory minimum sentences or by decreasing the pre-requisite convictions required for felony DUIs and physical control charges. One particularly tenacious proposal increased the mandatory minimum penalties on a first offense DUI or physical control conviction from 1 day in jail to three days in jail and from 2 days in jail to one week in jail (for a refusal or a BAC of .15 or greater) and requiring that a defendant pay the cost of this incarceration. These mandatory minimum increases were ultimately removed from a bill that did pass, but not without a fight. After all the dust settled, two significant bills were enacted into law which will impact impaired driving related crimes: Engrossed Second Substitute Senate Bill 5000 and Engrossed Second Substitute House Bill 1789.
Senate Bill 5000 – “Hailey's Law”
Senate Bill 5000, also called “Hailey's law,” was one of two bills introduced during the 2010-2011 session requiring the mandatory impound and hold of a vehicle when the driver is arrested for driving under the influence or physical control. This legislation was a response to a Whatcom county case in 2007 in which Hailey French was seriously injured in an accident with an impaired driver. That impaired driver had been arrested earlier in the evening by a Washington State Patrol trooper but was able to return to her parked vehicle and continue driving. Ms. French sued the Washington State Patrol and Whatcom County and was awarded 5.5 million in damages.
SB 5000, effective July 22, 2011, requires the mandatory impound and hold of a vehicle when the driver is arrested for DUI or physical control -- ending law enforcement discretion to safely park a vehicle or release the vehicle to a sober driver. Upon impound, the vehicle may not be redeemed from the storage facility for a twelve hour period. The law does allow a registered or legal owner who was not the arrested driver to redeem the vehicle at any time after arrival at the storage facility. Arresting officers are required to advise an arrested driver of these impound requirements.
SB 5000 does include two small exceptions. If there are exigent circumstances or an arresting officer waits 30 minutes after requesting impound and without the arrival of the tow, the officer may legally park and lock the vehicle with the impound order inside. Additionally, if the vehicle is a commercial or farm transport vehicle, the arresting officer may attempt to contact the legal owner of the vehicle to retrieve it prior to impound if the owner was not present in the vehicle at the time of arrest. SB 5000 also limits the liability of both law enforcement and tow operators.
House Bill 1789
The second major piece of legislation impacting impaired driving related offenses to pass this session was House Bill 1789. Originating as HB 1648, this bill initially created a new DUI and physical control prong: a “per se” prong for marijuana of 8 or more nanograms of THC per milliliter of blood. When the creation of a marijuana “per se” prong proved to be too controversial, that language was removed and the sponsor reintroduced the bill as HB 1789. Even without the creation of a marijuana “per se” prong, HB 1789 underwent significant changes during its path through the legislative process with eight proposed amendments, six of which were adopted. The final bill, most provisions of which will be effective September 1, 2011, will make the following significant changes to impaired driving related offenses:
Ignition Interlock Devices
The passage of HB 1789 brings one major benefit to our clients accused of DUI or physical control: credit for all pre-conviction use of an ignition interlock device. Starting with incidents occurring on or after September 1, 2011, HB 1789 requires that the Department of Licensing give drivers a day for day credit for use of an ignition interlock device on all vehicles they operate beginning from the date of the incident. This would include credit for ignition interlock device use required by a court as a condition of pre-trial release or voluntarily installed by a driver. This credit is given toward the mandatory 1, 5 or 10 year ignition interlock device requirements for a conviction under RCW 46.61.5055 and 46.20.720(3). When calculating this credit, the term “all vehicles” does not include those vehicles which would qualify under the employer exceptions in RCW 46.20.720(3).
However, in addition to giving a driver credit for all ignition interlock device use, HB 1789 will increase the circumstances in which a driver will be required to install an ignition interlock device to lawfully drive. Effective September 1, 2011, anyone convicted of reckless driving (if the charge was originally filed as a DUI, physical control, vehicular homicide DUI prong or vehicular assault DUI prong) or negligent driving first degree (regardless of original charge) who has a prior offense within seven years as defined by 46.61.5055(14) will be required to only drive with a functioning ignition interlock device for a period of six months. Additionally, the six months of required ignition interlock device use will be subject to the four months of compliance as required by RCW 46.20.720(4).
HB 1789 also attempts to end confusion over ignition interlock device requirements for drivers who enter deferred prosecution programs. Specifically, HB 1789 amends RCW 46.20.720(2) to add a requirement that the court order any person participating in a deferred prosecution program for a DUI or physical control charge to have a functioning ignition interlock device installed on all vehicles they operate. This would apply to drug and non-alcohol dependency mental health deferred prosecutions as well. HB 1789 additionally amends RCW 10.05.140 to require that the court order the use of an ignition interlock device on any alcohol dependency deferred prosecutions (regardless of original charge) for time periods not less than those provided for in RCW 46.20.720(3) (1, 5 and 10 years depending on number of prior IID orders).
The final ignition interlock device related change in HB 1789 is the clarification of the length of time a court must order “other alcohol monitoring” under RCW 46.61.5055(5)(f). If the court orders abstinence as a condition of sentence on a DUI or physical control conviction and the defendant does not drive or is ineligible to obtain an ignition interlock license, the period of alcohol monitoring ordered by the court must be for the period of mandatory license suspension or revocation.
While the attempt to increase mandatory minimum jail penalties on a first offense DUI or physical control conviction was unsuccessful, other penalty increases to impaired driving related crimes did pass in HB1789. Effective September 1, 2011, any DUI or physical control charge will be a felony if the driver has a prior conviction for a felony DUI or physical control at any point in their driving history. In addition, HB 1789 expands the definition of a “prior offense” under RCW 46.61.5055(14) to include any conviction for vehicular assault or vehicular homicide if the charge was originally filed under the impaired driving prong.
HB 1789 will also change sentence enhancements for vehicular assault and vehicular homicide as of September 1, 2011, with the addition of language to RCW 9.94A.533(7) requiring that all enhancements for prior offenses as defined by RCW 46.61.5055 shall be mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions.
Finally, HB 1789 creates a new section in RCW 2.28 authorizing the creation of “DUI Courts.” Effective July 22, 2011, Washington courts will have the authority to separate DUI and physical control cases into a specialized court. A DUI court is defined as a court with special dockets designed to achieve a reduction in recidivism of impaired driving among non-violent alcohol abusing offenders by the use of early, continuous and intense judicial supervised treatment. A jurisdiction may establish other requirements for participation in a DUI court, but as a minimum the offender must benefit from alcohol treatment and have a disqualifying criminal history. There is no requirement that a DUI court be a diversion style therapeutic court in which successful compliance results in a dismissal of charges or other significant benefit to the defendant. Some state funds will be available to support the cost of establishing a DUI court, but jurisdictions must first exhaust all federal funding available; and match on a dollar for dollar basis state money allocated for DUI court programs with local cash or in-kind resources.
Two final procedural changes that will impact defendants accused of impaired driving related crimes are the establishment of a registry and minimum requirements for DUI victim impact panels and an increase in the mandatory BAC fee and. HB 1789 attempts to increase DUI victim impact panel standardization by giving the Washington Traffic Safety Commission authority to create a registry of “qualified” victim impact panels with minimum requirements for inclusion on the registry. Also effective July 22, 2011, the BAC fee imposed on DUI related cases will increase from the current $125.00 to $200.00 with $25.00 of the fee designated to help fund Washington Traffic Safety Commission grants. These grants may then be used to support programs aimed to reduce impaired driving related collisions, including DUI courts.
 For ease of reading, I use the simplified SB 5000 instead of ESSSB 5000 and HB 1789 instead of ESSHB 1789 throughout the rest of the article.