As discussed on the Legal Docket earlier this year, the legislature was busy again making extensive changes to Washington DUI statutes in the 2017 Session. Most, if not all changes, become effective July 23, 2017. The bulk of impairing driving related statutes were changed with House Bill (HB) 1614, an omnibus bill introduced by Representative Roger Goodman, Chair of the House Public Safety Committee.
Related Podcast: The Proposed DUI Law Changes for 2017
The original version of HB 1614 was based largely on input from Representative Goodman’s Impaired Driving Working Group. The group meets once or twice a session at the Washington Administrative Office of the Courts office in SeaTac. Members of the group represent stakeholders such as Washington State Patrol, Washington Assoc. Prosecuting Attorneys (WAPA), alcohol treatment agencies, Ignition Interlock Device (IID) companies, county government officials, Judicial Officers, and, most importantly, for citizens accused of DUI, an organization I am proud to be a member of and support for over 15 years, Washington Association Criminal Defense Lawyers (WACDL) and the Washington Defender Association (WDA). Governor Inslee signed HB 1614; making it effective July 23, 2017. Here is a line Summary of Law Changes:
- Forensic "Police" Phlebotomists (A person who is trained and qualified to draw a citizens blood) – Abbreviated phlebotomist training for Police.
- RCW 9.96.060: Clarifies people must wait ten years from date of arrest to vacate an offense that is a prior offense under RCW 46.61.5055 (reckless driving, negligent driving first degree, etc.).
- RCW 10.31.100: Expands mandatory booking where officer knows the person already has a pending DUI charge.
- RCW 46.20.385: Allows IID companies to retain twenty-five cents per month of the $20 per month ignition interlock license fee.
- RCW 46.20.720(e): Provides a medical exemption from the IID requirement tolling provision and requires 180 days (instead of four months) IID compliance prior to removal.
- RCW 46.61.5055:
- Allows for jail alternatives: for one prior with an under .15 BAC, 4 days jail and either 180 days EHM or 120 days 24/7 sobriety program in lieu of 30 days jail and 60 days EHM and, for one prior with a .15 or higher or refusal, 6 days of jail and either 6 months of EHM or 120 days 24/7 sobriety program in lieu of 45 days of jail and 90 days EHM.
- Court can consider pretrial 24/7 sobriety program as fulfilling a portion of sentence.
- Allows person to reduce license revocation to one year if they complete six months of 24/7.
- RCW 46.61.506: Removes piercings as a breath testing "foreign object" in the oral cavity and expands authorized persons to draw blood to anyone under title 18 whose scope of practice includes venous blood draws and forensic phlebotomists and out-of-state persons who are authorized by that state. Limits locations for forensic phlebotomist blood draws.
- RCW 46.61.508 and RCW 18.130.410: limits liability for expanded categories of those who can draw blood in RCW 46.61.506.
- RCW 46.61.517: Eliminates refusal to submit to blood under RCW 46.20.308 as evidence in a criminal trial but adds it in if refusal is to warrant or exception to warrant requirement.
- RCW 46.64.025: Expands license suspensions for those who FTA to those with notice rather than those served.
- RCW 36.28A.370: technical 24/7 funding statute that allows local accounts to contribute funds to 24/7 account.
- RCW 46.61.5054: DUI fee increases to $250 and expands examples of DUI court funding.
- RCW 18.360.010: Defines forensic phlebotomists
- RCW 18.360.020, 030, 040, 18.130.040, 18.120.020: Medical exemption for IID tolling and 180 day IID compliance – RCW 46.61.720(e). Most changes are relatively straight forward but a few require further information.
The medical exemption section of HB 1614 was adopted with some amendment. Prior to HB 1614, starting on June 9, 2016, all IID restriction periods have been tolled when the person did not have an IID. The effect of this was to require citizens to complete the full IID restriction without the option to "wait it out."
One consequence of this law change was that clients with breathing disabilities would be unable to satisfy the IID requirement; therefore, they would theoretically be prevented from driving for life. With this law change, a person with a breathing disability can request a determination that they are unable to operate an IID based on "good and substantial evidence" that they have a physical disability. If granted, the person is exempt from the tolling provision and can "wait it out."
Second, HB 1614 increased the IID compliance period prior to removal from four months to 180 days. This change was opposed, by Defense counsel representatives, but to no avail. In the event a person has a breathing disability and is convicted of DUI, they and their counsel should consider obtaining a written opinion from their doctor regarding their breathing disability and inability to operate an IID. While the actual procedure DOL will implement is unclear, there is the likelihood of obtaining a hearing or interview.
Electronic Home Monitoring (EHM) alternative for clients with one prior within seven years – RCW 46.61.5055(2). Judges now have discretion to impose a smaller amount of jail and a significant amount of EHM in lieu of the mandatory minimum jail and EHM for DUI convictions when the person has one prior offense within seven years. For those with a BAC of under .15, the judge can impose a minimum of four days of jail and either 180 days EHM or 120 days of 24/7 sobriety program in lieu of 30 days of jail followed by 60 days EHM. For those with a BAC of .15 and higher or a refusal, the judge has discretion to impose a minimum of six days of jail and either six months of EHM or 120 days of 24/7 sobriety program in lieu of 45 days of jail followed by 90 days EHM.
These alternatives do not require a finding that jail would impose a substantial risk to the person’s physical or mental well-being, as was the case previously. A judge is also able to consider pretrial 24/7 sobriety program participation as fulfilling part of the sentence.
The constitutionality of pretrial monitoring programs, like the 24/7 sobriety program, are currently being reviewed by the Washington Supreme Court in Blomstrom v. Tripp, No. 91642- 0. Although a person, with assistance of counsel may choose to object to the 24/7 sobriety program as a pretrial monitoring condition, but if denied one can now ask for credit against the sentence if it is imposed.
Forensic Police Phlebotomists – Abbreviated Phlebotomist Training For Police Officers:
The new forensic phlebotomist sections represent a compromise between WACDL and WAPA. WACDL advocated that police should be required to complete the same training and certification as anyone else who seeks to professionally draw blood, while WAPA advocated for allowing law enforcement agencies to decide the training requirements for its own officers.
A new section, yet to be numbered, articulates a policy seeking to strike a balance between promoting public safety and protecting the health of accused citizens. The State wants Police, who rarely can be accused of having a gentle, healing touch, to insert a needle into citizens’ veins. At national defense attorney seminars and conventions, we often hear horror stories about cops forcibly drawing blood in states like Arizona, strapping an arrested person to a chair and sticking them with a needle. Although the idea of police drawing blood tends to make us cringe, in the past, there has been nothing to prevent an officer, if properly trained and certified by the Washington Department of Health, from drawing blood. Therefore, there should be no special treatment, or corners cut for police.
Prior to the HB 1614 forensic phlebotomist sections, Senator Mike Padden proposed a bill to allow each individual law enforcement agency to set its own criteria for forensic phlebotomists’ qualifications and certifications. This bill initially passed in the Senate but, fortunately, did not pass in the House. The Department of Health (DOH) is now pursuing rule that allows a special path for police be certified while requiring DOH certification and oversight. This is/was a victory for citizens.
Although it would be preferred that police follow the same path as any other medical professional, it is encouraging that the legislature has recognized the legitimate concerns and provided for DOH oversight. RCW 18.360.030 provides that DOH shall adopt rules for forensic phlebotomists and requires between twenty and thirty hours of work in a clinical setting, completion of one hundred successful venipunctures, and no more than forty hours of classroom training. See RCW 18.360.030(1)(b).
Amendments to title 18 implement forensic phlebotomy in relevant DOH provisions: RCW 18.360.010, RCW 18.360.020, 030, 040, 18.130.040, 18.120.020. You are likely to find little comfort in RCW 46.61.506(6) which limits the locations where forensic phlebotomists can draw blood. If taken at the scene, the blood must be drawn in an ambulance or aid car and must not interfere with medical care. The sample must be taken with sterile equipment and the skin must be thoroughly cleansed and disinfected.
Finally, the person must evidently be comfortable: "The person whose blood is collected must be seated, reclined, or lying down when the blood is collected." Although we likely cringe as citizens, the law change does present opportunities for DUI defense. We can expect that police, who will have much less experience than professional healthcare providers, will make many more mistakes. Failure to follow protocols and procedures are key to defending citizens accused of DUI in every case, but now in new DUI blood draw cases. The competency of the blood draw is now a fertile area for defense, where it was less so when medical staff were predominately drawing a person’s blood, under the watch of police. Further, the limitation on the location of the blood draws in RCW 46.61.506(6) provides another means for challenge when the officer’s inevitably fail to comply with these limitations. Furthermore ad unfortunately, we may also see medical malpractice and injuries to citizens accuse of DUI who endured blood draws. As a society, we should be prepared to see attorneys filing lawsuits.
Expanded categories of persons authorized to draw blood – RCW 46.61.506(5) HB 1614 adds a broad category of persons who can draw blood: "a person holding another credential under Title 18 RCW whose scope of practice includes performing venous blood draws…" The original bill authorized anyone under title 18 to draw blood.
It was at legislative session that this means that accountants, attorneys, auctioneers, escrow agents, and art dealers would be permitted to draw blood. It was then added "whose scope of practice includes performing venous blood draws…" Although a slight improvement, this still seems to be an overly broad authorization to draw blood. This provision also authorizes blood draws performed outside Washington so long as the person drawing blood is authorized in that state. The purpose was for accidents on the border where the nearest hospital is over the border.
Removal of piercings as foreign objects – RCW 46.61.506(4)(a)(iii) This change was not the product of scientific evidence or research by the Washington State Toxicologist. Instead, it was proposed on theoretical unnamed "research." This change was opposed and it was argued that such a change of this nature (breath tests conducted where a person has an oral piercing is inadmissible) should be through the rule making process based on scientific evidence.
Finally, the Seattle City Prosecutor’s office proposed an amendment to RCW 46.61.504 which would have essentially eliminated safely off the roadway as a defense to the crime of Physical Control. Elimination of the defense was aggressively opposed and it was explained that the amendment would also eliminate the longstanding policy of encouraging impaired drivers to get off the road.
Another proposal was HB 1874 that would have lowered the Blood/Breath Alcohol per se limit to .05 and the companion SB 5648 would have expanded Vehicular Homicide to include drowsy or sleepy drivers. These changes did not pass.
The 2017 Regular Session brought many new impaired driving law changes. Some of these changes can help an experienced and knowledgeable DUI defense attorney help citizens accused while many other amendments stand to make the defense and situation more challenging than ever. However, changes in the law often create opportunities, and I for one, have been training for years in anticipation of the move from breath to blood and stand ready to take advantage of these opportunities to help my clients.