New DUI Laws Go Into Effect

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New DUI Laws in Washington

 

 

Washington’s new DUI legislation is going into effect.  Below I have included a summary of the major changes to the law.

Concentration (RCW 46.61.502)

  • Still .08 for alcohol, but 5.00 NPM for Non-carboxy THC, or 0.00 NPM if client is under 21
  • For CDL it is “any measurable amount of THC” (Unclear if they will count non-carboxy THC)
  • (3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person’s breath or blood to cause the defendant’s alcohol concentration to be 0.08 or more within two hours after driving

Mandatory Arrest (Sec. 22 (2)(d)) – RCW 46.61.5055

  • Mandatory arrest and taken into custody if Officer “knows” that the client has had a prior DUI, Refusal, Physical Control in the past TEN YEARS
  • Prior convictions Includes Neg 1, Reckless Driving, and Reckless Endangerment and Deferred Prosecution if original charge was DUI or Physical Control (RCW 46.61.5055 (14))

Pretrial Release (Section 26 -32)

  • When charged with DUI or related and who has a prior offense under 41.61.502 or 46.61.504 (no time limit), court MUST order
  1. Install an IID within 5 days Unless court authorizes a later date due to availability

And/Or

  1. Comply with 24/7 sobriety program
  • Can be ran by the City, County, or a designated agency
  • The court can condition any bond or pretrial release upon compliance of the 24/7 sobriety program including payment of costs and expenses Effective January 1, 2014 (Sec. 28)
  • The court SHALL NOT waive or reduce fees or associated costs for participation in the 24/7 sobriety program (Sec. 31)

Post Conviction Violations of 24/7 Sobriety Program (Sec.32)

(Pre Conviction 24/7 violations are treated as standard pretrial release violations)

  1. 1st Violation
  • Receive a written warning notice to comply with conditions (Make sure that client has current address filed with the court/DOL)
  1. 2nd Violation
  • Serve a term of two days imprisonment
  1. 3rd Violation
  • Serve a term of up to five days imprisonment
  1. 4th Violation
  • Serve a term of up to ten days imprisonment
  1. 5th Violation
  • Client SHALL serve the entire remaining sentence imposed by the court

The law does not state that the sentence should be “Total Confinement” but imprisonment as like DWS 1, which courts around the State have interpreted to include EHC and Work Crew under the Rule of Lenity and case law allowing for the alternatives. Unclear if the courts will allow for the alternatives or a hybrid sentencing structure, but as this would be post-conviction I’m sure that absent convincing the Judge otherwise, the courts will give straight jail time.

Sentencing

  • Prior convictions Includes Neg 1, Reckless Driving, and Reckless Endangerment and Deferred Prosecution if original charge was DUI or Physical Control (RCW 46.61.5055 (14))
  • Courts can no longer defer DUI sentences, with the exception of a Judge finding that the Jail sentence would “impose a substantial risk to the offender’s physical or mental well being.” (as always)
  • Mandatory tolling of jurisdiction if client FTA’s a show cause PV
  • If a person who is convicted of a violation of RCW 46.61.502 or 46.61.504 committed the offense while a passenger under the age of sixteen was in the vehicle, the court shall:
    • – (a) Order the use of an ignition interlock or other device for an additional six months
  • Penalties when a passenger under sixteen is in vehicle
  1. No Priors within seven years
  • Not less than $1000 and 1 additional days in jail
  1. One Prior within seven years
  • Not less than $2000 and 5 additional days in jail
  1. Two or Three Priors within seven years
  • Not less than $3000 and 10 additional days jail
  • The Senate Bill that also passed through the House has language that states the above penalties also apply to clients who “was driving in the opposite direction of the normal flow of traffic on a multiple lane highway, as defined by RCW 46.04.350, with a posted speed limit of forty-five miles per hour or greater…” (RCW 46.61.5055 (7)( c )) but this language does not appear on the Washington State website…not sure if resolution was struck from the bill.

  • For sentencing purposes of this special sentencing, the burden is on the prosecution to show proof that the charge/allegation is “plead and proved”

Sentencing EHC

 

  • EHC – 60 day EHC can now be converted to Six months of the 24/7 sobriety program if the Judge finds that EHC is not practicable as for homeless or indigent clients
  • In addition to the EHC it appears that the court can also require SCRAM or breathalyzer, also the court can order one of the new GPS devices if client is not able to comply with EHC requirements due to housing, or lack of housing for that matter, issues.
  • For clients facing their second or third DUI, the revised RCW now gives a recommendation as to a conversion rate in exchanging EHC for jail, though the recommendations only state the MINIMUM conversion rate as such:
  1. 2nd Low Blow – 60 EHC to “At least” 4 days jail
  2. 2nd High Blow – 90 EHC to “At least” 6 days jail
  3. 3rd Low Blow – 120 EHC to “At least” 8 days jail
  4. 3rd High Blow – 150 EHC to “At least” 10 days jail
  • Violations post conviction – Language was changed on the J&S for the 30 day sanction from “license AND insurance” to “license OR insurance” so there is no more wiggle room to argue for no sanction

Vehicle Forfeiture

  • Client with a prior DUI conviction within the last SEVEN years who is now charged with a new DUI should be provided with a written notice stating that the vehicle that the client was driving during the incident shall be prohibited, and be considered unlawful, from encumbering, selling, or transferring his or her interest in the vehicle pending  acquittal, dismissal, sixty days after conviction, or other termination of the charge (Section 18 (1))
  • In all cases of this forfeiture it must be shown that the client has a financial interest in the vehicle
  • Upon conviction with a client with a prior DUI in the last SEVEN years, the court SHALL consider at sentencing whether the vehicle should be seized
  • Appears to be that if the court decides to seize the car, the vehicle will be taken be any cop upon service of process. Service and notice must be given to all parties with a know interest in the vehicle
  • Service by mail “is complete upon MAILING within the fifteen-day period after the seizure.” (Section 18 (4)) So constructive notice is good enough
  • “If no person notifies the seizing law enforcement agency in written of the person’s claim of ownership or right to possession of the seized vehicle within forty-five days of the seizure, the vehicle is deemed forfeited.” (Section 18 (5))

Appeals

  • “Perfection of a notice of appeal shall stay the execution of the sentence pertaining to the withholding of the driving privilege.” (Section 17 (4))
  • While the new rule of appeal does not automatically stay execution of any jail time or like sentence, the court still has authority to postpone the execution of the jail sentence pending appeal but must make findings of things like release conditions, posting of appeal bond, likelihood of flight, ect…Pretty much like the old process

Ignition Interlock

  1. Employer exemption – (Section 19 (2) (b) (ii) (B) &(C)) Does not apply to:
  1. The first 30 days of after and ignition interlock has been installed as the result of a first conviction (so get it sooner than later as the DOL gives day for day pro rated credit)
  2. For the first 365 days after an ignition interlock has been installed as the result of a second or subsequent conviction of a DUI or similar crime
  1. Four Month Certification for Compliance – Cannot certify compliance of IID if any of the following incidents occur in the four months prior to the date of release:
  1. ANY attempt to start the vehicle with a BAC of .04 or more, unless a subsequent test done within 10 minutes confirms a BAC of below the .04
  2. Failure to take any random (rolling) test unless the digital image confirms the client was not the driver
  3. Failure to pass any retest with a BAC of UNDER .025
  4. Failure to appear for required calibration and/or maintenance of the machine

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