2017 DUI Law Amendments, Part 1

2017 DUI Law Amendments, Part 1

Every year the legislators seek to create new laws and tweak the prior laws relating to alcohol and driving. 2017 is no exception. What follows is a brief review of the proposals for additions and changes to Washington State DUI law as well as a few comments or concerns from a practical point of view.

If any of these new laws or amendments are of particular concern to you please contact your local representative and share your concerns. Washington DUI laws are among the more harsh and long lasting in the nation.

Changes to Washington DUI laws will of course bring changes locally to citizens of each county and city, although not everyone recognizes this when the proposals are raised Washington State DUI law will change Whatcom County DUI, City of Bellingham DUI law, Skagit County DUI laws, Island County and San Juan County DUI laws to name only a few.

HB 1037

This bill seeks to modify the mailing requirements of tow truck operators when sending certain notifications to legal and registered vehicle owners. It also seeks to prohibit furnishing to an insurance company the abstract driving record of a registered tow truck operator. The question presented is: why should an insurance company not be given a tow truck operators driving record?

HB 1218

Modifies towing and impoundment provisions with regard to the timeline for the termination of towing fees. The relevant change is as follows:

(4) Fees that are charged for the storage of a vehicle, or for other items of personal property registered or titled with the department, must be calculated on a twenty-four hour basis and must be charged to the nearest half day from the time the ((vehicle5 arrived)) operator has unloaded the vehicle and completed the necessary paperwork at the secure storage area.

This change seems to reflect fees to cover the actual time working or dealing with the vehicle.

HB 1614

This bill covers a lot of ground as it affects vacating a criminal record for Washington DUI, mandatory conditions of release for those accused of Washington DUI, and things in between.

DUI Charge Vacation Change

The restrictions on vacating an impaired driving-related "prior offense" in RCW 9.96.060 are amended to add an express requirement that ten years has elapsed since the arrest for the prior offense. (The current law requirement remains that the applicant must also not have had an alcohol or drug violation within ten years of the arrest for the vacated offense) and this current law is frequently interpreted differently by Judges around the State. This will remove all discretion for removing Washington DUIs or DUI reduced to a lesser crime and will require a 10-year waiting period.

Conditions of Release Change

RCW 10.31.100 is amended to require mandatory arrest and booking requirements for persons suspected of impaired driving (a DUI arrest anywhere in Washington State) when the officer knows that the person is charged with or awaiting arraignment on another offense related to impaired driving. This means if a person has a pending DUI in the court system and is arrested again, during this time, there must be a booking into jail. Here in Whatcom County, every DUI arrest is booked into jail regardless of any priors or pending charges. This change would have little impact for Whatcom DUI arrests.

The Payment For Cost Of Ignition Interlock

The proposed change to RCW 46.20.385 would mean Ignition Interlock Device (IID) users must send currently required monthly $20 Ignition Interlock Device Revolving Account payments directly to the Department of Licensing (DoL) (rather than sending the payments to the ignition interlock company, which remits to the DoL). Every person convicted of a Washington DUI, or those arrested for DUI who suffer a license suspension or revocation from DoL are required to have an IID and the DoL is responsible for maintaining records. Seems like payment directly to the entity is appropriate.

Time Limits Of Interlocks

Currently, RCW 46.20.720, states the requirements for the removal of an ignition interlock restriction is four consecutive months of the device being violation-free. This changes that time limit to require one hundred and eighty consecutive violation-free days prior to the release of the restriction. This is an extension of time to have the IID from four months to six months but expressed in days. The value of this change is debatable. It does not change the fact that a person convicted of DUI is required to have the device any longer nor shorter because everyone convicted is required to have for at least 1 year, but this changes the fact that a person MUST have it for 180 days before the restriction is lifted after 1 year. This means if you don't have a car to install it and keep it for at least the last 180 days of the 1-year requirement, then the requirement stays until satisfied. This appears to be pure punishment. The IID is for public safety and to last 1 year. If a person chooses to NOT drive for that year, the public safety is achieved. Currently, however, even under this scenario, a person can sit the year out but still has to show a 4 months compliance and now potentially 180 days.

The Defense Of Safely Off The Roadway

The proposed amendment to RCW 46.61.504 is to make the following change:

The "safely off the roadway" defense is defined as a vehicle is safely off the roadway if: (1) the driver is removed from the driver’s seat; (2) the vehicle is parked in an area that is not a sidewalk, bike path, or driving lane; (3) the vehicle’s engine is off; and (4) the vehicle’s transmission is in park, or in gear if a motorcycle or manual vehicle.

Currently, the defense requires a person to be off the roadway and not by accident (driving off and crashing for example), but rather to remove the car from the roadway. In the Bellingham context, consider a vehicle on State Street that pulls into a designated parking space or location and the driver then "passes out," but only after realizing that s/he should not be driving. This is and has been good public policy. However, this change in the language would undoubtedly encourage more people to take their chance to get the car home rather than do the right thing. The current language actually promotes highway safety. The new language negatively affects that both for the public in general and for the driver, as it would encourage them to leave the safety of their car, in an intoxicated state, thus creating danger for them as well.

Breath Testing Requirements

RCW 46.61.506(4) and Washington State Administrative Code 448-16 both require a person to be breath tested having nothing in their mouths for at least 15 minutes prior to breath testing except non-removable dental work (bridges, braces, fillings). Oral piercings have always been required to be removed, and if not able or refused to remove, then the person was deemed to have a physical limitation and blood testing would ensue. The reason for the oral cavity being free of objects is for the sake of accuracy of breath testing. However, in my estimation and experience, breath test operators (police officers) don't want to deal with a piercing or are unfamiliar with the protocol and over the years, numerous breath samples have been done with piercing in and around the oral cavity and that many breath tests have been excluded. As a change to avoid this, and decades worth of precedent on breath testing is now being sought and proposed to be amended to read as follows: The person being tested did not have any foreign substances, not to include dental work or piercings, fixed or removable, in his or her mouth at the beginning of the fifteen-minute observation period.

Qualified Person For A Blood Draw

Under RCW 46.61.506 numerous persons qualified to draw blood for legal testing (Alcohol or Drugs) and there is a proposal to add "a person certified as a physician's trained advanced emergency medical technician and paramedic may perform blood draws pursuant to an impaired driving investigation." And so there is a proposal to find that "blood draws occurring outside of the state, any qualified person may perform a draw."

A "Refusal" For Blood With Warrant Or Special Circumstances

The statute regarding the admissibility of a person's refusal to submit to a blood or breath test is amended to indicate that a refusal to submit to a blood test is admissible if a search warrant, or an exception to the warrant requirement, authorized the seizure. Currently, if a person refuses a blood draw there can be no comment on the so-called refusal because the refusal is not relevant as a warrant is necessary because of how invasive the search is. If there is no warrant, then an exception is needed. This statute seems to propose admitting a person refusal to let blood be drawn when a warrant or special circumstance is present. The reality is, however, this is already the case.

There are more amendments in the system and of great importance the proposal to lower the legal limit from .08 to .05. That legislation is not as far along as the above and will report on that next week.

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