DUI & DWIClients’ ChoiceAward 2012-2019

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:

  1. The legislature finds that:
    1. Despite every effort, the problem of driving or controlling a vehicle while under the influence of alcohol or drugs remains a great threat to the lives and safety of citizens. Over five hundred people are killed by traffic accidents in Washington each year and impaired vehicle drivers account for almost forty-five percent, or over two hundred deaths per year. That is, impairment is the leading cause of traffic deaths in this state;
    2. Over thirty-nine thousand people are arrested each year in Washington for driving or controlling a vehicle while under the influence of alcohol or drugs. Persons arrested for driving or controlling a vehicle while under the influence of alcohol or drugs may still be impaired after they are cited and released and could return to drive or control a vehicle. If the vehicle was impounded, there is nothing to stop the impaired person from going to the tow truck operator's storage facility and redeeming the vehicle while still impaired;
    3. More can be done to deter those arrested for driving or controlling a vehicle while under the influence of alcohol or drugs. Approximately one-third of those arrested for operating a vehicle under the influence are repeat offenders. Vehicle impoundment effectively increases deterrence and prevents an impaired driver from accessing the vehicle for a specified time. In addition, vehicle impoundment provides an appropriate measure of accountability for registered owners who allow impaired drivers to drive or control their vehicles, but it also allows the registered owners to redeem their vehicles once impounded. Any inconvenience on a registered owner is outweighed by the need to protect the public;
    4. In order to protect public safety and to enforce the state's laws, it is reasonable and necessary to mandatorily impound the vehicle operated by a person who has been arrested for driving or controlling a vehicle while under the influence of alcohol or drugs.
  2. The legislature intends by chapter 167, Laws of 2011:
    1. To change the primary reason for impounding the vehicle operated by a person arrested for driving or controlling a vehicle under the influence of alcohol or drugs. The purpose of impoundment under chapter 167, Laws of 2011 is to protect the public from a person operating a vehicle while still impaired, rather than to prevent a potential traffic obstruction; and
    2. To require that officers have no discretion as to whether or not to order an impound after they have arrested a vehicle driver with reasonable grounds to believe the driver of the vehicle was driving while under the influence of alcohol or drugs, or was in physical control of a vehicle while under the influence of alcohol or drugs. [ 2011 c 167 § 2.]

NOTES: Short title—2011 c 167: "This act shall be known and cited as Hailey's Law." [ 2011 c 167 § 1.]

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:

Impoundment, when required—Law enforcement powers, duties, and liability immunity—Redemption, when, by whom—Operator liability immunity—Definition

    1. When a driver of a vehicle is arrested for a violation of RCW 46.61.502 or 46.61.504, the vehicle is subject to summary impoundment and except for a commercial vehicle or farm transport vehicle under subsection (3)(c) of this section, the vehicle must be impounded. With the exception of the twelve-hour hold mandated under this section, the procedures for notice, redemption, storage, auction, and sale shall remain the same as for other impounded vehicles under this chapter.
    2. If the police officer directing that a vehicle be impounded under this section has:
      1. Waited thirty minutes after the police officer contacted the police dispatcher requesting a registered tow truck operator and the tow truck responding has not arrived, or
      2. If the police officer is presented with exigent circumstances such as being called to another incident or due to limited available resources being required to return to patrol, the police officer may place the completed impound order and inventory inside the vehicle and secure the vehicle by closing the windows and locking the doors before leaving.
    3. If a police officer directing that a vehicle be impounded under this section has secured the vehicle and left it pursuant to (b) of this subsection, the police officer and the government or agency employing the police officer shall not be liable for any damages to or theft of the vehicle or its contents that occur between the time the officer leaves and the time that the registered tow truck operator takes custody of the vehicle, or for the actions of any person who takes or removes the vehicle before the registered tow truck operator arrives.
    1. When a driver of a vehicle is arrested for a violation of RCW 46.61.502 or 46.61.504 and the driver is a registered owner of the vehicle, the impounded vehicle may not be redeemed within a twelve-hour period following the time the impounded vehicle arrives at the registered tow truck operator's storage facility as noted in the registered tow truck operator's master log, unless there are two or more registered owners of the vehicle or there is a legal owner of the vehicle that is not the driver of the vehicle. A registered owner who is not the driver of the vehicle or a legal owner who is not the driver of the vehicle may redeem the impounded vehicle after it arrives at the registered tow truck operator's storage facility as noted in the registered tow truck operator's master log.
    2. When a driver of a vehicle is arrested for a violation of RCW 46.61.502 or 46.61.504 and the driver is a registered owner of the vehicle, the police officer directing the impound shall notify the driver that the impounded vehicle may not be redeemed within a twelve-hour period following the time the impounded vehicle arrives at the registered tow truck operator's storage facility as noted in the registered tow truck operator's master log, unless there are two or more registered owners or there is a legal owner who is not the driver of the vehicle. The police officer directing the impound shall notify the driver that the impounded vehicle may be redeemed by either a registered owner or legal owner, who is not the driver of the vehicle, after the impounded vehicle arrives at the registered tow truck operator's storage facility as noted in the registered tow truck operator's master log.
    1. When a driver of a vehicle is arrested for a violation of RCW 46.61.502 or 46.61.504 and the driver is not a registered owner of the vehicle, the impounded vehicle may be redeemed by a registered owner or legal owner, who is not the driver of the vehicle, after the impounded vehicle arrives at the registered tow truck operator's storage facility as noted in the registered tow truck operator's master log.
    2. When a driver of a vehicle is arrested for a violation of RCW 46.61.502 or 46.61.504 and the driver is not a registered owner of the vehicle, the police officer directing the impound shall notify the driver that the impounded vehicle may be redeemed by a registered owner or legal owner, who is not the driver of the vehicle, after the impounded vehicle arrives at the registered tow truck operator's storage facility as noted in the registered tow truck operator's master log.
    3. If the vehicle is a commercial vehicle or farm transport vehicle and the driver of the vehicle is not the owner of the vehicle, before the summary impoundment directed under subsection (1) of this section, the police officer shall attempt in a reasonable and timely manner to contact the owner of the vehicle and may release the vehicle to the owner if the owner is reasonably available, as long as the owner was not in the vehicle at the time of the stop and arrest.
    4. The registered tow truck operator shall notify the agency that ordered that the vehicle be impounded when the vehicle arrives at the registered tow truck operator's storage facility and has been entered into the master log starting the twelve-hour period.
  1. A registered tow truck operator that releases an impounded vehicle pursuant to the requirements stated in this section is not liable for injuries or damages sustained by the operator of the vehicle or sustained by third parties that may result from the vehicle driver's intoxicated state.
  2. For purposes of this section "farm transport vehicle" means a motor vehicle owned by a farmer and that is being actively used in the transportation of the farmer's or another farmer's farm, orchard, aquatic farm, or dairy products, including livestock and plant or animal wastes, from point of production to market or disposal, or supplies or commodities to be used on the farm, orchard, aquatic farm, or dairy, and that has a gross vehicle weight rating of 7,258 kilograms (16,001 pounds) or more.

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

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