Hailey's Law Declared Unconstitutional

Hailey's Law Declared Unconstitutional

This week, the week of October 17, 2019, the Washington Supreme Court Declared the Mandatory Impound Law, After a DUI arrest Unconstitutional. The law is popularly known as Hailey’s Law.


The law was born out of a Whatcom County DUI Arrest which is a tragic story in 2009. The law was likewise born in the rush to "do something" to "anything" to respond to the event and punish those suspected of DUI. You will find the law below, but first a review of what lead up to the desire.

In its briefest form: A driver was arrested in Bellingham Washington for suspicion of DUI by a Washington State Trooper (WSP). Upon stopping the woman for a minor traffic infraction, and contacting her the Trooper learned that she did not have a valid license, did not have a functioning ignition interlock in her vehicle, and had consumed enough alcohol that the trooper placed her under arrest for that, as well as the other two crimes. her vehicle was left parked where it was stopped, which happened to be in a parking lot. The vehicle was not impounded as there was no need to, it was not impeding traffic. This was the standard up to this point. If a third party was present to take the vehicle in a short period of time and wait for them, or if the vehicle was not a danger, lock it and leave it.

The driver was transported to the nearest breath testing device, which was the Whatcom county jail. Once there, she was processed for the crimes she was arrested and consented to a breath test. A test was administered, and she was over the legal limit. even though she was at the jail, upon completion of the processing, she was not booked into jail. Booking an arrested person for misdemeanor arrests, particularly these kinds of crimes, was and still is rare. The procedure followed by the trooper was standard: take the person somewhere public and drop them off (in Skagit County DUI arrest, the local Denny’s or Sheri’s parking lot was a popular area, as was the Denny’s in Whatcom for DUI arrestees). In this case, the trooper provided her a ride to her residence.

After the trooper left, she called a cab, rode back to her car, and drove it towards her home. I say towards her home because she never made. While on her way, she crossed the centerline, and struck an oncoming vehicle head on. The vehicle in the lane she crossed into was driven by Hailey. Hailey was severely injured. Her injuries included a collapsed lung, a fractured pelvis, a dislocated hip, a fractured right femur and knee, a crushed right foot, and a left wrist fracture, resulting in 13 surgeries, one year in a wheelchair, months of physical therapy, and permanent injuries that prevent Hailey from living a full life. The causing driver was again arrested at the scene of the accident and had a blood alcohol level higher than the test obtained earlier in the night. In the wake of this, Haley sued for the damages. The story of that is here https://washingtoninjury.com/case-results/haileys-story-seattle/

Immediately after the accident, the jail booking policy changed in Whatcom county and remains to this day: All DUI arrests, even those who provide breath samples under the limit, or those who provide blood and results are unknown, MUST be jailed.

The legislature was urged to create a law that would keep this from happening and after two years, the mandatory impound law was passed. It is found at RCW 46.55.350 and states as follow:

This law is remarkable in the sense that it states at the outset that the law’s intent and cites to fears and seeks to justify the deprivation of property in the name of public safety. While this is a laudable goal, it was done at the expense of protected rights as ruled Oct 17, 2019.

The law itself is found at RCW 46.55.360 and states as follows:

A casual reader may ask "why this seemingly good law struck down?" Or feel that "people who drive drunk deserve to have their vehicle taken!" which are natural human emotions, thoughts and feelings, but we are a State of laws, and laws don’t permit emotion. The Hailey’s law violates a person right to be free from unlawful search and seizure. The same Constitutional right and law that prohibits the government from kicking in you front door without the authority of law is what struck this law from the books.

The problem with this law was that legislature "lowered" the constitutional protections of everyone when it passed the law. The law was aimed at a particular "problem" area, and designed to punish those arrested, but the Constitution prohibits that. The Constitution is the bedrock and no law can fall below that. The Legislature can create laws that give more protection to citizens, all citizens, accused or unaccused, but the legislature cannot take away what the Constitution guarantees.

The Supreme Court decision is below to read but the critical lines that summarize the above are as follows:

  • The right to be free from searches by government agents is deeply rooted in our nation's history and law, and it is enshrined in our state and national constitutions.
  • Generally, officers of the State must obtain a warrant before intruding into the private affairs of others, and we presume that warrantless searches violate both constitutions. However, "[that presumption can be rebutted if the State shows a search fell within certain 'narrowly and jealousy drawn [exceptions]to the warrant requirement.'"
  • First, we "determine whether the action complained of constitutes a disturbance of one's private affairs." If so, we turn to the second step, "whether authority of law justifies the intrusion.”
  • Impounding a car is a seizure under our state constitution. From the earliest days of the automobile in this state, this court has acknowledged the privacy interest of individuals and objects in automobiles. Thus, as the State concedes, the first step of the analysis is met.
  • The second step of the article I, section 7 analysis turns on whether a statute requiring a mandatory warrantless seizure is consistent with the guaranties of article I, section 7. The constitution, of course, cannot be amended by statute, and while the legislature can legislatively protect constitutional rights, it cannot legislate them away.
  • Impoundment must be reasonable under the circumstances. Determining whether an impoundment  is reasonable under the circumstances requires an act of judgment by the officer on the scene.
  • We have long held that under article I, section 7, authority of law to impound a vehicle after the driver has been arrested exists in two circumstances. First, a vehicle may be impounded on probable cause that it contains evidence of a crime. Second, a vehicle may be impounded when there is '"reasonable and proper justification for such impoundment."'
    • "The reasonableness of a search or seizure must be decided in light of the facts and circumstances of the case. "The police officer does not have to exhaust all possible alternatives, but must consider reasonable alternatives."
  • Thus, an impound is lawful under article I, section 7 only if, in the judgment of the impounding officer, it is reasonable under the circumstances and there are no reasonable alternatives.

As a result, the Supreme Court found through the rule of law, the common law, holdings from previous case interpreting the Constitution, since the officer did not make that judgment to impound and the statute compelled him to impound the property the Statute, was unlawful. The Court never got to an additional issue. The issues of whether the fact that an owner, not a driver, but an owner, is deprived of their property without a "predeprivation" hearing. This question or issue was never answered or even raised as the statute being invalid alleviates the need to address this, but it should be noted that the right to Due Process, a Constitutional Right, requires that property owners receive an opportunity to be heard before they can be deprived of their property.

The crime of DUI is one that conjures up many feelings, and emotions, and reactions, but the important thing to remember is that ALL people accused of a crime are entitled to certain protections, until those accusations are proven beyond a reasonable doubt, or they plead guilty. Punishing the accused prior to proof, is a violation of the Constitution.

There is no room in the law, nor a lessening of protections because we happen to dislike the crime they are accused of. This is the reason we have a system of Court review. A balance and check system.

Supreme Court Decision