Another Legislative Session, Another Set Of Changes To The DUI Laws

Another Legislative Session, Another Set Of Changes To The DUI Laws

State Capitol. It seems like every year, the previous year’s DUI law changes were simply not enough, so there is more “tinkering” with the DUI statutory landscape. Changes that fix prior legislative oversights,or legislation that becomes is impossible or impractical to actually implement is understandable. Inevitably, however, when the legislature revisits these, it seems to that other changes just have to be made. In fact this past legislative session, some of the most useless and ridiculous bills were proposed and thankfully died at some legislative stage (Roadblocks and Scarlett Letter License plates).


It seems like every year, the previous year’s DUI law changes were simply not enough, so there is more “tinkering” with the DUI statutory landscape.  Changes that fix prior legislative oversights, or legislation that becomes is impossible or impractical to actually implement  is understandable.  Inevitably, however, when the legislature revisits these, it seems to that other changes just have to be made.  In fact this past legislative session, some of the most useless and ridiculous bills were proposed and thankfully died at some legislative stage (Roadblocks and Scarlett Letter License plates).

With these proposals and actual changes comes some useful amendments (Felony amendments bringing the laws up to other felony standards), but also sensational headlines that grab the public readers attention.  After all what better way to increase readership, hits on a website, or encourage online comments?  Advertise the sensational headlines.  Headlines like “New, tougher steps on DUI sentencing,” or “Legislature OKs bill closing DUI fatality sentence loopholes.”  While these headlines are not totally inaccurate, they are misleading and only provide a reader with a partial picture.    As a result, I write today to simply inform. To inform you of the changes and how they change the law.  Weather the changes are good or bad, I leave up to you to decide, but at least it can be done with full knowledge.  The following legislative changes are all on their way to the Governor’s Desk and expected to be signed into law effective September 2011.

The bill that has passed through with dozens of changes (amendments and deletions) is  1789.  The changes are as follows:

RCW 46.20.385(1)(c )(iii) now reads that: “Beginning with incidents occurring on or after the effective date of this section, when calculating the period of time for the restriction under RCW 46.20.720(3), the department must also give the person a day-for-day credit for the time period, beginning from the date of the incident, during which the person kept an ignition interlock device installed on all vehicles the person operates. For the purposes of this subsection (1)(c)(iii), the term “all vehicles” does not include vehicles that would be subject to the employer exception under RCW 46.20.720(3).”  Asa result, there is still no need for an IID on employer owned vehicles driven for work purposes.

This also  means that people who voluntarily place an ignition interlock device on their car after being arrested for DUI, will get credit against against the mandatory time it would be required of convicted. Voluntary means that any time it is not required as a condition of a driver’s license. For instance if a Judge orders the device as a condition of release due to a DUI arrest, the fact that DoL has not required it yet renders the installation voluntary. While many may disagree with the credit,it is hard to argue that the credit for time is bad if it provides some public protection.

RCW 46.61.502(6)(b)(iv) was amended to make DUI a regular DUI a class C felony if previously been convicted of a violation of any felony DUI or Physical Control. Previous to this amendment, a person was a Felony DUI if they were previously convicted of Vehicular Homicide, or Vehicular Assault by DUI, or of the person had 4 prior DUI charges within 10 years of a 5th DUI. This law eliminates the need for 4 priors that could have washed out by the passage of time. Previously, a 5th DUI in 10 years was a felony and if another 10 years went by and then a new DUI arrest the person would NOT be a felon, but this amendment put Felony DUI (by way of 4 priors) on par with the DUI-Homicide or Assault level. In other words, like those DUIs, there is no “washout” by the passage of time. Any subsequent DUI regardless of time, is a felony if you previously were convicted of DUI Homicide, Assault, and now Felony DUI by priors. While some consider this a loophole closed, it more accurately described as placing the felony DUI on par with every other felony crime and since felony DUI is a relatively new crime some tinkering was required.

RCW 46.61.504(6)(b)(iv) was also amendede due to it being the DUI "sister" charge. This is called Physicial Control. These are cases where the person is not actually seen driving but found in a parked car that they are in control of. It is a DUI by another name. As a result since the Physical Control statute is a different section of the code, it needed to be changed to reflect the changes described to the Felony DUI described above.

The Reckless Driving Statute (RCW 46.61.500(3)(a) & (b)) was changed to require mandatory Ignition Interlock Device (IID) for 6 month required on conviction for Reckless Driving if Reckless Driving is a reduction from DUI or Physical Control; and driver has prior DUI offense within seven (7) years. Furthermore, if the reduction is down from a case originally charged as Vehicular Homicide or Vehicular Assault by way of DUI. In other words, a second offense DUI reduced, or a case where there is insufficient evidence to convict on a DUI homicide or DUI Assault charge.

Likewise, the Negligent Driving Statute (RCW 46.61.5249(4)) was changed to reflect a reduction from DUI if a prior DUI within seven years (7),also requires a IID for 6 months.

RCW 46.20.720(2) was changed to make it mandatory for a Court to order IID for any person participating in a Deferred Prosecution due ot a DUI or Physical control charge. Previously, a mental health based Deferred did not require an IID, whereas a alcohol based Deferred Prosecution always required it. With this change, a person who has no alcohol dependency issues will be required to have an IID, for better or worse.

RCW 46.20.720(3) is the enabling statute that requires DoL to ensure the court order for IIDs on Negligent Driving and Reckless Driving Second offense convictions are enforced.

RCW 46.20.720(5) sets for the time period for the IID on the above reductions from DUI to Reckless / Negligent to six (6) months.

RCW 10.05.140 was amended to clarify that that IID period for Deferred Prosecutions be not less than the periods required for convictions. This means that is a person has a prior DUI conviction they were ordered to have an IID for 1 year. If they enter a Deferred Prosecution for a second DUI, the conviction would have required a IID for 5 years, so the Deferred Prosecution must now also require a IID for that same length of time they would have had to have the IID if convicted. While this makes sense, the jurisdiction of a Deferred Prosecution is 5 years, so a 3rd offense DUI would require a 10 year IID, but that is impossible to enforce, however, it remains to be seen if DoL will require the IID for 5 years after the completion of the Deferred.

RCW 9.94A.533(7) now requires that the 2 year enhancements on Vehicular Homicide conviction by DUI, in recognition of prior DUIs are mandatory and must be served in total confinement and run consecutive (in addition to) other sentencing provisions.

The remaining amendments were changes that permits Counties to establish special DUI courts, add a DUI court to mental health and drug courts, increases Breath testing fee from 125.00 to $200.00and designates where some of the funds must go. Furthermore, alcohol evaluations must now be sent to court AND DOL, and finally, the legislature has now set minimum requirements for the Victim Impact Panel’s that are run throughout the state.

Regardless of the rhetoric that is offered to support these changes, the changes reflect a growing legislative concern for DUI on a Washington State-wide level.  As a result, a DUI in Bellingham, or Spokane, the laws will be present and less discretionary than before.  The changes, particularly for a repeat DUI arrest are significant  and require knowledgeable, aggressive, and uncompromising defense.