Another Legislative Session, Another Set Of Changes To The DUI Laws
It seems like every year, the previous year’s DUI law changes were simply not enough, so there is more “tinkering” with the DUI statutory landscape. Changes that fix prior legislative oversights,or legislation that becomes is impossible or impractical to actually implement is understandable. Inevitably, however, when the legislature revisits these, it seems to that other changes just have to be made. In fact this past legislative session, some of the most useless and ridiculous bills were proposed and thankfully died at some legislative stage (Roadblocks and Scarlett Letter License plates).
With these proposals and actual changes comes some useful amendments (Felony amendments bringing the laws up to other felony standards), but also sensational headlines that grab the public readers attention. After all what better way to increase readership, hits on a website, or encourage online comments? Advertise the sensational headlines. Headlines like “New, tougher steps on DUI sentencing,” or “Legislature OKs bill closing DUI fatality sentence loopholes.” While these headlines are not totally inaccurate, they are misleading and only provide a reader with a partial picture. As a result, I write today to simply inform. To inform you of the changes and how they change the law. Weather the changes are good or bad, I leave up to you to decide, but at least it can be done with full knowledge. The following legislative changes are all on their way to the Governor’s Desk and expected to be signed into law effective September 2011.
The bill that has passed through with dozens of changes (amendments and deletions) is 1789. The changes are as follows:
RCW 46.20.385(1)(c )(iii) now reads that: “Beginning with incidents occurring on or after the effective date of this section, when calculating the period of time for the restriction under RCW 46.20.720(3), the department must also give the person a day-for-day credit for the time period, beginning from the date of the incident, during which the person kept an ignition interlock device installed on all vehicles the person operates. For the purposes of this subsection (1)(c)(iii), the term “all vehicles” does not include vehicles that would be subject to the employer exception under RCW 46.20.720(3).” Asa result, there is still no need for an IID on employer owned vehicles driven for work purposes.
This also means that people who voluntarily place an ignition interlock device on their car after being arrested for DUI, will get credit against against the mandatory time it would be required of convicted. Voluntary means that any time it is not required as a condition of a driver’s license. For instance if a Judge orders the device as a condition of release due to a DUI arrest, the fact that DoL has not required it yet renders the installation voluntary. While many may disagree with the credit,it is hard to argue that the credit for time is bad if it provides some public protection.
RCW 46.61.502(6)(b)(iv) was amended to make DUI a regular DUI a class C felony if previously been convicted of a violation of any felony DUI or Physical Control. Previous to this amendment, a person was a Felony DUI if they were previously convicted of Vehicular Homicide, or Vehicular Assault by DUI, or of the person had 4 prior DUI charges within 10 years of a 5th DUI. This law eliminates the need for 4 priors that could have washed out by the passage of time. Previously, a 5th DUI in 10 years was a felony and if another 10 years went by and then a new DUI arrest the person would NOT be a felon, but this amendment put Felony DUI (by way of 4 priors) on par with the DUI-Homicide or Assault level. In other words, like those DUIs, there is no “washout” by the passage of time. Any subsequent DUI regardless of time, is a felony if you previously were convicted of DUI Homicide, Assault, and now Felony DUI by priors. While some consider this a loophole closed, it more accurately described as placing the felony DUI on par with every other felony crime and since felony DUI is a relatively new crime some tinkering was required.
RCW 46.61.504(6)(b)(iv) was also amendede due to it being the DUI "sister" charge. This is called Physicial Control. These are cases where the person is not actually seen driving but found in a parked car that they are in control of. It is a DUI by another name. As a result since the Physical Control statute is a different section of the code, it needed to be changed to reflect the changes described to the Felony DUI described above.
The Reckless Driving Statute (RCW 46.61.500(3)(a) & (b)) was changed to require mandatory Ignition Interlock Device (IID) for 6 month required on conviction for Reckless Driving if Reckless Driving is a reduction from DUI or Physical Control; and driver has prior DUI offense within seven (7) years. Furthermore, if the reduction is down from a case originally charged as Vehicular Homicide or Vehicular Assault by way of DUI. In other words, a second offense DUI reduced, or a case where there is insufficient evidence to convict on a DUI homicide or DUI Assault charge.
Likewise, the Negligent Driving Statute (RCW 46.61.5249(4)) was changed to reflect a reduction from DUI if a prior DUI within seven years (7),also requires a IID for 6 months.
RCW 46.20.720(2) was changed to make it mandatory for a Court to order IID for any person participating in a Deferred Prosecution due ot a DUI or Physical control charge. Previously, a mental health based Deferred did not require an IID, whereas a alcohol based Deferred Prosecution always required it. With this change, a person who has no alcohol dependency issues will be required to have an IID, for better or worse.
RCW 46.20.720(3) is the enabling statute that requires DoL to ensure the court order for IIDs on Negligent Driving and Reckless Driving Second offense convictions are enforced.
RCW 46.20.720(5) sets for the time period for the IID on the above reductions from DUI to Reckless / Negligent to six (6) months.
RCW 10.05.140 was amended to clarify that that IID period for Deferred Prosecutions be not less than the periods required for convictions. This means that is a person has a prior DUI conviction they were ordered to have an IID for 1 year. If they enter a Deferred Prosecution for a second DUI, the conviction would have required a IID for 5 years, so the Deferred Prosecution must now also require a IID for that same length of time they would have had to have the IID if convicted. While this makes sense, the jurisdiction of a Deferred Prosecution is 5 years, so a 3rd offense DUI would require a 10 year IID, but that is impossible to enforce, however, it remains to be seen if DoL will require the IID for 5 years after the completion of the Deferred.
RCW 9.94A.533(7) now requires that the 2 year enhancements on Vehicular Homicide conviction by DUI, in recognition of prior DUIs are mandatory and must be served in total confinement and run consecutive (in addition to) other sentencing provisions.
The remaining amendments were changes that permits Counties to establish special DUI courts, add a DUI court to mental health and drug courts, increases Breath testing fee from 125.00 to $200.00and designates where some of the funds must go. Furthermore, alcohol evaluations must now be sent to court AND DOL, and finally, the legislature has now set minimum requirements for the Victim Impact Panel’s that are run throughout the state.
Regardless of the rhetoric that is offered to support these changes, the changes reflect a growing legislative concern for DUI on a Washington State-wide level. As a result, a DUI in Bellingham, or Spokane, the laws will be present and less discretionary than before. The changes, particularly for a repeat DUI arrest are significant and require knowledgeable, aggressive, and uncompromising defense.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to remain silent is an important right that effects each and every DUI case, and a right that exists from the moment a driver is stopped, or seized by law enforcement. If you are stopped during this emphasis, do not forget that roadside tests are voluntary, and if arrested make sure you speak with a lawyer before a breath test is provided. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
New Year Brings Changes To DUI Laws.
The title is a little misleading, as the law on DUI in terms of the legal limit has not changed, but rather the laws related to a DUI arrest or conviction have changed. Some may say for the better, while others will strongly disagree. Regardless of the camp you may be in on this, what matters is that those who could not drive previously, now can, but with significant supervision and consequences. The changes relate to who is eligible for a Ignition Interlock Device (IID) as well as the fairly new Ignition Interlock License (IIL).
For the most part the changes create an “Extension of Eligibility” so that those previously unable to legally drive, regardless of whether they have an IID, now are able. Among the most important extensions is the ability of a those arrested or convicted of a drug related DUI and Physical Control convictions to obtain an IIs. Previously a alcohol based DUI was permitted an IIL while a drug based DUI was not. Both alcohol and drug based DUI conviction are NOW able to obtain an IIL.
Further extensions are to those who have had their licenses suspended or revoked due to a DUI related Vehicular Assault and Vehicular Homicide Arrest and Conviction. Where they were previously unable to obtain an ILL, they can now do so.
There is now and IID exception, meaning no IID is necessary on specific vehicles. So a person who ordinarily would be required to have a IID on their “personal vehicle” does not need one on vehicle “owned, leased, or rented by a person’s employer and on those vehicles whose care and/or maintenance is the temporary responsibility of the employer, and driven at the direction of a person’s employer as requirement of employment during working hours.”
This new exception allows people like mechanics to test drive vehicles they work on, or persons who job requires a rental car when they fly somewhere.
With respect to the IID and Convictions & Sentencing, the IID and requirement to obtain an IIL is now at the discretion of the Court and Judge for ALL drug and alcohol related convictions. This means that a DUI reduced to a lesser charge that is still alcohol related permits a Judge to order an IID or IIL even though there law does not specifically mandate it.
Alternatively, a Court may waive IIL application requirement if: (1) driver lives out of state with no reasonably available devices; (2) person does not operate a vehicle; or (3) not eligible for IIL. However, in such scenario’s the Court shall order other alcohol monitoring if no ILL and abstinence is ordered.
The meaning of priors within a seven and or ten year period is also now entrenched in statute, rather than the case law, although the statute is exactly the definition stated by the Supreme Court. “Within seven years” means that the arrest for a prior offense occurred within seven years before or after the arrest for the current offense; and “Within ten years” means that the arrest for a prior offense occurred within ten years before or after the arrest for the current offense.
Similarly a legislative fix from the same court case clarifies a “prior offense” in the form of a Deferred Prosecution when a second offense has been found to have been committed, yet the Deferred not yet revoked. This prevents “second offenses” as was the case previously. So as of now the legislature has again entrenched the Supreme Court ruling; the law is now that “ a deferred prosecution revoked based on a subsequent conviction for an offense, the subsequent conviction shall not be treated as a prior offense of the revoked deferred prosecution for purposes of sentencing.”
Also related to a Deferred Prosecution, it was previously the case where the person was forced to obtain an IIL and that required SR22 insurance, despite there being no license suspension. This years amendment, undoes that requirement and a IIL is no longer required for a deferred prosecution, HOWEVER an IID is STILL mandatory for at least 1 year as always.
Another legislative New Year’s resolution was to increase the penalty for an IID violation while participating in a Deferred prosecution to that of a gross misdemeanor. Previously if a person violated the IID requirement they were only at risk to have a Judge revoke the Deferred, but now face an additional sentence up to 1 year in jail and a $5,000.00 fine rather than a 90 day jail term and a $1,000.00 fine. Furthermore, the Department Of Licensing now has the authority to suspend a person license who is on a DP if they are non-compliance with IID. This does not require any order.
In addition to adding some requirments, what the legislature giveth, it taketh away. A person may remove an IID (post conviction of course) if they can 4 consecutive months without: (1) an attempt to start with a BAC of 0.04 or more; (2) failure to take or pass any retest; or (3) failure to appear at IID vendor.
Another change stems from a case closer to home. In April 2009, a jury returned a verdict in favor of Hailey French who was injured in a head-on collision with a drunk driver who had been released from a prior drunk driving arrest by a state trooper one hour and 39 minutes previously. The Whatcom County District Court Probation Department was a party in the suit due to the fact that the drunk driver had been under a court order to drive only a car equipped with an alcohol interlock device, but the probation department had failed to follow-up on the judge’s court-ordered requirement. As a result there are NOW Liability Limitations. The probation department as an agency of Government now has liability limited if probation verifies installation of IID via written documentation from IID vendor.
Additionally, violations of IIL or IIL requirements are now a gross misdemeanor, when they were previously NOT crimes.
While this is a fairly specific recitation of the changes, a person should always look up and read law with their own two eyes, or make sure that they obtain clear and concise information from an attorney well versed in the DUI laws of THIS state. As it can be seen from the above, numerous laws change and change frequently. Defense of a citizen charge with DUI is not to be taken lightly nor is it for the inexperienced, nor should a lawyer who has no DUI experience handle such a defense. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com Email:jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
Rules, Regulations, & Repercussions Of The Ignition Interlock License.
In 2009 the legislature made a significant change to the laws regarding the ability to legally drive for those arrested for DUI. New legislation implemented a new type of license for those under suspension due to a DUI arrest or conviction. This new license is called an ignition interlock license (IIL). Previously a person suspended as a result of a DUI conviction or Department Of Licensing (DoL) administrative suspension/revocation had the ability to drive with an ignition interlock device but the license criteria was very restrictive and was really only feasible for those who had never been arrested for DUI before. The previous license was called a Occupational/Restricted License (ORL). For a first time arrestee who provided a breath test the driver was eligible to obtain this license but only after the first 30 days of the suspension had run. Also, the previous licensing scheme restricted when and where the driver could travel. For those who refused a breath sample and were under suspension (legally called a revocation) the driver was still eligible for the special license but only after waited the first 90 days of the 1 year revocation period had run. For those driver’s who were previously arrested and suspended for a DUI within 7 years, they faced a a 2 year revocation and the person was required to wait a full year before they could obtain the license. These 30 or 1 year waiting periods impacted a person’s ability to work, participate in treatment etc.
As a result of this very restrictive licensing scheme, many suspended and revoked persons simply could not wait the mandatory periods and to be quite honest many drove illegally. While some were stopped and arrested for Driving While license Suspended, Second Degree, I would guess that most violators were not caught. Fortunately the legislature recognized the dangers of the very restrictive ORL program given the large number of potentially unlicensed drivers who were on the road.
Consequently, the current IIL legislation was created and remains in place today with a few slight modifications followed by a few more tweaks in January 2011 . Those not eligible for the IIL because their suspension is not alcohol related, there is still an ORL program, but it now addresses those driver’s who are suspended/revoked for reasons other than DUI.
The IIL now makes almost everyone eligible for the special license regardless of whether the suspension/revocation was via the Departmental Administrative action pre-conviction, or for a actual conviction. To be eligible for this license the persons drive record must show: an arrested for, or conviction of, an alcohol-related DUI, Physical Control, or Minor Operating After Consuming Alcohol, (those convicted of Drug DUI are NOT eligible until January 2011), and the driver license was valid on the date of conviction or before the date of any suspension/revocation. At the time of IIL Application, the application fee of $100.00 must be paid, proof of financial responsibility (SR22 Insurance is the most common method) must be present, and proof of an ignition interlock device installation for every vehicle you drive.
Assuming the applicant meets the above criteria and presents all the required information they will be issued an Ignition Interlock License. The license itself is a standard sheet of paper and while the DoL will maintain electronic evidence of the status in their system. A holder of the IIL must make sure they have the license with them when they drive just like a regular license. The successful applicant will receive the license in the specified manner requested on the application (Email; Fax, or US mail). The I.I.L looks just like the image attached.
A person is NOT eligible for an IIL if the person has been convicted of vehicular assault or vehicular homicide within seven years of the suspension date or , if the person is under a suspension/revocation for a conviction for Minor In Possession (MIP), Reckless Driving amended from a DUI, or Habitual Traffic Offender.
While an IIL is not the only solution, and certainly not a cure for the disease of alcohol abuse or dependence the program is a way to allow a person to maintain their occupation, attend treatment, and minimize specific recidivism. The IIL is also required for those who enter a Deferred Prosecution as a means of enforcing abstinence for the first year of the 5 year program. Currently, however, the Department requires the IID/IIL for 2 years despite the Courts only ordering the IID for 1 year if first time the person was ordered to have a IID, but January 1. 2011 legislation will harmonize this discrepancy.
IILs and IIDs are by no means a perfect solution but on a short term basis they seem to be the best way to satisfy demands and concerns of the public at large and since many IILs are required via the Department of Licensing before any criminal punishment is imposed they strike a balance between punishment prior to conviction and public safety. As mentioned previously, those who are convicted of DUI will be required to have an IIL regardless of that the DoL requires and the requirement post-conviction will be for at least 1 year. Ironically, however, the technological limitations of the device may be more dangerous than an actual impaired driver but technology should catch up sooner than later.
An application for a IIL can have some unintended consequences that a driver MUST be aware of before requesting the license and only a lawyer or attorney who limits their practice to a DUI defense has the specialized knowledge to make sure there are no unintended consequences.
Jonathan Rands is experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. For a more interactive discussion on IID’s on September 12, 2010 Jonathan spoke with Bellingham’s KGMI’s Tracy Ellis on the Legal Docket at http://www.kgmi.com/pages/7015350.php
If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands via his web-page at http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
