DUI Legislation 2016

DUI Legislation 2016

New DUI Laws are once again afoot. The DUI landscape is constantly changing, whether they be complete overhauls or subtle tweaks, there is not a year that goes by without DUI law amendments. This year there are 3 significant changes. House Bill 2280 passed the Senate with a unanimous vote after clearing the House in February. It then headed to and was approved by Governor Jay Inslee.

The Bill reads as follows:

AN ACT Relating to making felony driving under the influence of 2 intoxicating liquor, marijuana, or any drug a class B felony; amending RCW 46.61.502; and prescribing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 5 Sec. 1. RCW 46.61.502 and 2013 c 3 s 33 (Initiative Measure No. 502) are each amended to read as follows:

  1. A person is guilty of driving while under the influence of 8 intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state:
    1. And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
    2. The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or
    3. While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or
    4. While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.
  2. The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section.
  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. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of driving and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus 
  4. (a) Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(c) or (d) of this section. (b) Analyses of blood samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1)(c) or (d) of this section.
  5. Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.
  6. It is a class C felony punishable under chapter 9.94A 2 RCW, or chapter 13.40 RCW if the person is a juvenile, if:
    1. The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or
    2. The person has ever previously been convicted of:
      1. Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a);
      2. Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b);
      3. An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or
      4. A violation of this subsection (6) or RCW 46.61.504(6).

The only language that was amended in this statute was section 6. It is this section that changes the current and existing law where a fifth (5th) DUI conviction within 10 years of the first DUI arrest, from being a Class C felony, to a Class B. This means that the maximum penalty was five years in prison and/or $10,000 fine, and as a Class C now increases that maximum upon conviction t Class B felony, which has a maximum of 10 years in prison, a $20,000 fine or both. Moving the class from C to B now doubles the maximum.  A person's first four DUIs are gross misdemeanors (subjecting a person convicted person to a up to a year of jail and up to a fine of $5,000.00). A otherwise “regular” DUI is also a felony for someone who is arrested a second time in their lifetime if they previously committed vehicular homicide or vehicular assault while intoxicated.

This law is prospective, meaning currently charged Felony DUI Defendants are Class C, but anyone charged after the effective date, or who's date of violation is prior to the effective date will remain Class C, regardless of when the case is filed. The new class designation has no specific effective date, and when that is the case the rule is that all bills are effective 90 days from the end of the session in which they were enacted. In this case, that means that the new designation becomes effective in early June this year, 2016 (June 9-10 or so).

The other major change is to RCW making a Vehicular Homicide By Way Of Reckless Driving from a seriousness level 11 to 13. The higher the seriousness level the more severe the crime and punishment (seriousness level 1 being the least serious and least sentence ranges to level 16 being the most serious and highest maximum and sentence ranges).

What this change has done is made Vehicular Homicide, by way of reckless driving, the same seriousness level as Vehicular Homicide by DUI (.08 or above and THC 5 and above). A quick review here, a person who is charged with Vehicular Homicide can be found to have done the crime by way of being DUI, or by Reckless Driving, or by Driving with a Disregard For The Safety Of Others. Each method of proof and conviction previously was a different seriousness level and likewise a different sentence range. By changing the Reckless Driving level, and making it equal to DUI, a convicted person faces same sentence despite lesser culpability. More importantly the ability to plea bargain close cases from DUI to Reckless is now evaporated. This means more trials and more system resources used for cases that would previously be resolved in a manner that both the State Prosecutors and Defense Attorneys could agree upon, rather than an all or nothing trial. This was especially helpful in close cases where both sides faced maximum risk.

The war on DUI is frequently fought with harsher sentences, and lowering of evidentiary burdens, but sometimes the in doing so the casualties may well be the system, and even victims who watch as a close case is tried and the Defendant found Not Guilty by a jury of his/her peers when a compromise could have been reached had the law remained the way it was.

Call Jonathan For a Free Consultation: (360) 306-8136

“Being charged with a DUI is scary and often makes you feel alone against the unknown. Jonathan made himself available after hours to have a 'consultation' of sorts, to meet with me and hear my story, at no cost or commitment.”
Amy
A DUI Client, via Avvo