2012 DUI Legislative Changes: A Year In Review.Jonathan Rands
There has been much publicity and discussions dedicated to the voter’s will and I-502, but not too long ago, August 1, 2012 to be exact, there were numerous changes to the DUI and Physical Control law that took with little notoriety with the exception of the criminalization of inhalants. What follows is list of all the changes that took effect and to some degree what effect they have had thus far in the world of DUI. Give or take a subsection...
There has been much publicity and discussions dedicated to the voter’s will and I-502, but not too long ago, August 1, 2012 to be exact, there were numerous changes to the DUI and Physical Control law that took with little notoriety with the exception of the criminalization of inhalants. What follows is list of all the changes that took effect and to some degree what effect they have had thus far in the world of DUI. Give or take a subsection or two there were about 19 changes to the various DUI laws all under the umbrella topic of Driving Under The Influence (DUI). Enabling legislation authorizing the changes listed below to the statute listed below. We begin with S.S.H.B 2443.
RCW 2.28.175 – Amended to extend the authority to create a DUI Court, a court dedicated to the prosecution of only DUI, to the municipalities of the State. Previously the statute only provided for State Courts (County District Courts) to create and maintain DUI Courts.
RCW 9.94A.640 – DUI sentence recommendations, plea agreements, and sentences imposed by the Courts in felony matters (Vehicular Assault, Vehicular Homicide, and Felony DUI by way of priors)are to be retained as public records for these felony DUI convictions as well as felony Physical Control Convictions. Previously the recommendations by either party, the defense and/or the State Prosecutors, were NOT retained. Consequently, “losing” a defendant’s felony history is no longer likely.
RCW 9.94A.640 – Felony DUI and Physical Control convictions are no longer crimes that can be removed from a person’s record. They cannot be vacated, sealed nor expunged. This is likely a result of the Felony DUI statute previously contained a loophole. A felony DUI is defined as a person who has 4 prior arrest and convictions subsequent to that arrest, or a person previously convicted of a Vehicular Assault or Homicide and the current DUI arrest in question is subsequent that conviction anytime in a lifetime.
Prior to this amendment a person could vacate, seal, or expunge the felony conviction and if arrested after the fact for a new DUI it would not be a felony to the arrest currently charged. The prohibition on removing felony conviction(s) obviously “fixes” that issue.
RCW 9.95.210 – The superior court is now authorized to impose 60 months’ probation and supervision on DUI and Physical Control Convictions that are felony as authorized by RCW 46.61.5055. Traditionally, Superior Courts have Department of Corrections supervise convicted persons post arrest, and for DUIs that supervision was non-existent. This is no longer the case.
Also, it should be noted that RCW 9.95.210 authorizes the Superior Court to suspend all or any part of the sentence, which is a conflict with the statutory requirements of general DUI sentencing requiring mandatory jail and incarceration. Suffice it to say, there will be a amendment here sometime soon.
RCW 9.96.060 – A prior offense, meaning DUI or DUI and reduced conviction, can no longer be vacated if the person seeking the vacation, sealing, or expunging, has a subsequent alcohol or drug violation; meaning a conviction within 10 years of the arrest that led to the conviction that the person is trying to vacate. There has always been a waiting period of being crime free, but there is now the added requirement of being not only crime free, but drug or alcohol free. “Violations” means actual convictions as a result the charge, not mere allegations of a crime which is what a “charge” is.
RCW 38.52.430 – Previously, the State could obtain up to $1000.00 in restitution for state and city police activating their emergency lights and pulling a DUI over. It was called the emergency response fee. This amount is now a maximum of $2500.00, but the prosecutor must specifically request the amount prior to a sentencing hearing. Presumably, it has to be justified.
RCW 46.20.308 – amended to authorize a mandatory blood draw for felony DUI and Physical Control Arrests. Previously, if the arrest as a 5th DUI in 10 years the person was subjected to the statute requesting a breath sample and providing them the opportunity to refuse. This is no longer the case. There is no option to provide a breath test, as it is required that they have their blood drawn. Although this is tricky in practice as the arresting officer would need to know at the time of the stop and arrest what the person’s record is up to this point. Of course, a warrant for their blood could always be obtained regardless of the officer’s knowledge.
RCW 46.20.385 – A person who was charged DUI and had the charged reduced to Reckless Driving has always suffered a 30 day license suspension due to the Reckless Driving Conviction, but was previously only able to obtain an Occupational Restricted License (ORL) enabling them to drive during the 30 days.
That has now been changed as the person is able to obtain an Ignition Interlock License (IIL) which was previously only available to DUI convictions and suspensions. The ORL was fairly restrictive in time and locations and practically unenforceable and a result the ORL being replaced by the IIL is reflection of the fact an Ignition Interlock Device (IID) is the linchpin of either license and it just makes more sense.
Also, this amendment extends the availability of an IIL to anyone currently licensed at the time of the suspension regardless of the state that issued the persons license. Previously, only WA issued license holders or active military stationed in Washington State could obtain this.
This statutory amendment also limits employer vehicles to the IID exception by specifically excluding vehicles driven exclusively by the person and exclusively for commuting.
RCW 46.20.720 – The Department Of Licensing (DoL) is now in charge of suspensions and Interlock requirements as a result of this amendment. Previously a Court would order specific suspension times and other restriction like IIDs and IIL, but that is now in the hands of the DoL and the court only orders the person to “comply will all DoL requirements.” In my experience the Courts and Judges therein have always be critical of DoL’s disorganization and poor record keeping and this amendment only serves to make life more difficult.
This statute also dovetails with the previous statute as it specifically limits employer’s vehicle IID exceptions by excluding vehicle driven exclusively by the defendant and exclusively for commuting. Frequently statutes cross reference one another and this is an example of a change in one requiring a change on anther.
Another change is, this statute is responsible for the mandatory IID fee for those who are required to have an IID in any capacity they must pay a $20.00 fee monthly to support a IID fund used to supplement those driver’s required to have an IID but cannot afford the device. This $20.00 is in addition to the monthly fee the IID rental company charges.
RCW 46.20.745 – Those indigent drivers’ named above now have access to the fund to pay for an IID they cannot afford. Also, this statute now requires the Washington State Patrol (WSP) to track recidivism rates and numbers for IILs and not just for those required to have an IID. The difference is an IIL is not something that is mandatory a person may choose an IIL and any breath alcohol violations, legitimate or false positives, the WSP now are monitoring when they previously only monitored those who were DoL or Court ordered to have an IID. Apparently, the WSP which previously had a Highway Patrol mandate are now in the interlock business.
RCW 46.61.500 – Of the more important and practical changes is this one. A Reckless Driving conviction has long required a 30 days license suspension when the DoL learns of the conviction. Previously, a driver arrested for DUI or Physical Control would suffer a 90 day license suspension (if they lost the DoL hearing on the matter) for the arrest by DoL regardless of whether the Court action of the DUI was complete. Then, if the DUI was reduced to Reckless Driving a new and second license suspension would take effect even though the driver had already suffered a suspension (90 days or 1 year of refused) from the same incident. With the amendment, the DoL shall award credit on the 30 day suspension when there is a prior suspension from the DoL arising from the same incident. However, if a driver prevails at the DoL hearing and suffers no license suspension then the 30 days still needs to be served.
Previously, a driver who has an IIL due to a DUI or Physical Control arrest as a result of a DoL suspension, who during that time is notified of a 30 days suspension due to a Reckless Driving reduction and conviction, no longer needs to apply for the separate ORL, as the current IIL is sufficient. This amendment saves driver’s time, money and confusion.
It is also significant because the 30 days suspension would trigger a new start date for sr22 insurance which is no longer the case. This is because the sr22 requirement starts upon the conclusion of he suspension period.
RCW 46.61.5055 – This is another significant amendment. On second or subsequent DUI or Physical Control convictions convicted persons are required to serve mandatory Electronic Home Monitoring/Detention (EHM). That mandatory time previously could only be converted to straight jail time on strict statutory situations. This amendment use the word “may” and therefore no permits the sentencing Judge to convert as much of the EHM time to jail as he or she deems necessary and appropriate. While the discretion to do so is the Judges, the conversion is set by statute at a 15:1 ratio which significantly reduces the EHM time (i.e .60 days EHM equals 4 extra days jail). EHM costs about $15.00 per day and when there is a minimum of 30 days on EHM the money saved is significant.
This statute removes the prior command requiring the Court to order a DUI or Physical Control convicted driver to “apply for an IIL.” The defendants are now simply ordered to comply with any and all DoL requirements as described above. The previous Court order was impractical. Since a person is no longer ordered to apply for an IIL, nor install an IID, a court has lost some previously perceived authority, so it has been replaced by this amendment that provides even more authority because the Court is now permitted to “order abstinence from alcohol or drugs, or both and impose any other monitoring it deems fit and necessary.
Another change is that an out of State Deferred Prosecution will count as a prior offense in Washington if the treatment in the other state is equivalent on its face and includes a finding of dependency on alcohol or drugs or both and imposed dependency treatment. Previously this was unclear and since a person is only able to obtain an Deferred Prosecution once in a lifetime, it eliminates the possibility of someone having two, one out of state and one here in Washington.
RCW 46.61.5249 – This is the Negligent Driving Statute that makes it illegal, and a misdemeanor to drive a motor vehicle in a negligent manner and likely to endanger persons or property and in doing so, exhibiting the effects of having consumed alcohol or drugs. Due to the new “huffing” statute, the last few words of the statute now reflect this new law. Thus, it is now also negligent driving to exhibit the effects of having consumed, alcohol, drugs, or inhalants. A future post will be dedicated to this topic as it is something of an anomaly – huffing that is.
RCW 46.61.540 – As described above, being impaired by an inhalant is now illegal when previously it was not addressed. This statute is responsible for adding an “inhalant(s) to the list of statutorily definitions for the word and category of “Drugs” for use in Title 56 of the Revised Code Of Washington. In short, this is an enabling statute to create the crime of DUI and Negligent Driving for driving under the influence of inhalants. Among all these legislative changes this is the amendment with the most publicity this past summer 2012.
RCW 43.43 – This statute previously did not exist and is brand new. It requires the WSP to collect fees from IID providers to support the IID certification and compliance program. This is the statute that puts the WSP into the “business” of IID.
RCW 43.43.395 – as part of the new business scheme the WSP is permitted to require that IID companies use a “photo-enabled” IID when it is available. This is a device that takes a picture of the person as they blow into the device and if it is positive for alcohol the picture is preserved so there can be no dispute as to who provided the “dirty” sample.
2303 is the authority to make changes to RCWs 46.61.507 | 46.61.5055 |RCW 9.94A.533. These are regarding DUI Or Physical Control arrest & convictions with a passenger under age 16 in the vehicle.
Upon a DUI arrest where there is a child passenger as defined by being under age 16, law enforcement is REQUIRED to document the child’s presence and age and notify CPS;
- Law enforcement is REQUIRED to notify Child Protection Services (CPS) if the vehicle is driven by sibling or half-sibling and arrested for “alcohol related” offense;
- The age was changed from 13 to under 16 years;
- A person convicted of DUI or Physical Control with “child passenger” is subject to enhanced penalties of:
- Maintain an IID for six months beyond the statutory requirement if no child present increased fines to $1000.00, for first offense, $2,000.00,for second etc.
In the event there is a Vehicular Homicide of Vehicular Assault by way of DUI, or Felony DUI / Physical Control due to priors within 10 years, with a child passenger there is a 12 month sentence enhancement to the convicted driver per passenger under age 16. This time is consecutive to the sentence imposed under the standard rage for the crimes
RCW 46.61.5055 – Was amended to prohibit the DoL from imposing punishment, or taking action against a person’s license three years after the fact if the delay was caused by some sort of error. It came to the DoL’s attention in certain instances that they received notice of convictions that required them to take action. The DoL, however, did not find these cases until several years after the fact, but nevertheless, took action against the driver’s when they had no reason to believe they would suffer the action. As a result of that, there is now a form of “statute of limitations” for DoL to take actions and they are barred after 3 years.
RCW 9.94A.515 – Increases the seriousness level of the offense of Vehicular Homicide by DUI from a 9 to an 11. This is significant because the felony sentencing scheme is set by the Sentencing Reform Act (SRA) and that functions like a grid. A certain score when considering the seriousness level and priors equates to a range for sentencing. The bugger the final score, the longer the sentence as set by statute and the only way around the range is by an exceptional sentence up departure or downward departure. The increase in serious level is said to bring the seriousness of the crime in line with other crimes where a person suffers a death at the hands of another due to negligence, recklessness, or premeditation. This is among the more notorious of the above amendments championed as a result of a tragic “wrong way driver” Vehicular Homicide by DUI in Kirkland WA in early 2012.
As a parting thought it is important to recognize that these changes take effect for DUI crimes committed and sentenced AFTER August 1, 2012 even if they are sentenced after the commencement date. Most DUI crimes charged take about six months to a year to resolve so despite these changes taking August of this year, this review seems timely. However, even though these were numerous and substantial changes, there are currently more changes yet again, proposed already for the upcoming legislative session, which I will discuss soon enough. While I pride myself on providing my clients with the best defense possible to each and every individual, I would be remiss if I did not provide the best advice to avoid a DUI: Don’t Drink and Drive, but if you do and find yourself in a DUI scenario, remember your rights refuse roadside sobriety tests, request a lawyer and ask for an independent blood test. When you are able call for a free initial consultation and see how to obtain the best DUI Defense in the northwest.