The New DUI Laws: Sorting Through the Aftermath of Hurricane 2660
Greg Schwesinger

 
As is well known by now, the 2004 legislative session resulted in numerous changes to the laws of the State of Washington relating to driving under the influence (DUI). The true impact of these changes is, however, still somewhat undetermined. Moreover, it is clear that some results caused by the changes were not intended, and probably not even considered, prior to the legislature enacting the new laws.
House Bill 2660 created significant changes in the way the Department of Licensing ("DOL") imposes license suspensions and/or revocations resulting from DUI allegations. Ignition interlock devices ("IID") are now required for any alcohol-related DUI conviction or deferred prosecution, excluding dual diagnosis deferred prosecutions.1 A Temporary Restricted Drivers License ("TRL") is now available. The TRL replaces the Occupational License in the DUI context. In order to obtain a TRL one must: (1) pay a $100 application fee, and (2) verify that he has (a) an IID on his vehicle, and (b) high risk insurance, which must remain in effect for the duration of the TRL.2
A TRL can now be obtained whether a breath test was taken or not.3 This change in the law benefits drivers who refused to take a breath test, in that these drivers were previously precluded from obtaining a TRL. If a breath test was taken, the subject will not be eligible for a TRL for the first 30 days of his suspension/revocation.4 If the subject refused the breath test and did not have any prior offenses under RCW 46.61.5055 and/or DOL administrative actions within the preceding 7 years, he will not be eligible to obtain a TRL for the first 90 days of his license revocation.5 If the subject refused the breath test and had prior offenses under RCW 46.61.5055 and/or DOL administrative actions within the preceding 7 years, he will not be eligible to obtain a TRL for the first year of his license revocation.6 As an aside, it is interesting to note that in the criminal context, if a subject refused to take a breath test when lawfully requested, the period of suspension/revocation of his license has been increased by 1 year beyond that which was previously required by law.7
DOL is now authorized to grant day-for-day credit for any portion of a suspension/revocation already served because of a DOL administrative action and/or DUI criminal conviction, so long as the suspension/revocation arises out of the same incident.8 Similarly, DOL is now authorized to grant day-for-day credit for the time in which an IID is required for a TRL, towards the period of time an IID is required after reinstatement of a license.9
As previously discussed, DOL is now authorized to grant a day-for-day credit on license suspensions arising out of the same incident and imposed because of a DUI criminal conviction and/or a DOL administrative action.10 One scenario that is not accounted for in the new DUI laws, however, is what happens when a charge is reduced, but a license suspension is still ordered as part of the new non-DUI charge. For example, if a subject pleads guilty to a reduced charge of Reckless Driving he will, among other things, lose his license for 30 days, and will be required to obtain high risk insurance and maintain the same for a period of three years following his license reinstatement. DOL is not authorized to grant day-for-day credit on the Reckless Driving license suspension in conjunction with any license suspension the driver may receive under a DOL administrative hearing. In short, a subject could potentially receive a total of 120, 395, or 760 days of license suspension resulting in the license suspension periods running consecutively to one another rather than concurrently.
Moreover, if the license suspensions do not run concurrently, a subject will end up paying for more than three years of high risk insurance. Certainly, the legislature could not have intended to have day-for-day credit on DUI convictions, but not on lesser Reckless Driving convictions reduced down from DUI's. It is also doubtful that the legislature intended a subject to pay more than three years of high risk insurance after having his license reinstated. That, however, is exactly what has developed as a result of the new DUI laws.
An interesting issue appears to have developed with regard to how RCW 46.20.394 (occupational restricted license) and RCW 46.20.720 (ignition interlock requirement) now interface with one another. Are these subsections intended to be read separate and distinct from one another or in conjunction with one another? Upon an initial review of the subsections, it appears that when a subject obtains a TRL and/or reinstates his license after a license suspension/revocation due to a DUI conviction, he/she is not required to have an IID on work vehicles, owned by his/her employer and used by him/her for work-related purposes, during work hours. The same appears to not be true for a subject who intends to obtain a TRL if his suspension/revocation is a result of an unfavorable DOL administrative hearing result. The latter individual may be required to have an IID on employer-owned work vehicles, used during work hours for work-related purposes.
Alternatively, reading RCW 46.20.394 by itself, it appears that on its face that the subsection requires an IID on ALL vehicles (personal, work, or otherwise) during the actual period of suspension.11 For example, if a driver is suspended for 90 days as a result of a criminal conviction for DUI, that driver can obtain a TRL after 30 days, but would be required to have an IID on any vehicle (work or otherwise) that he or she drives. Regardless of whether or not this apparent discrepancy in the law was intended by the legislature, there are far-reaching employment consequences for those who have their license suspended/revoked as a result of being cited for DUI.
In a related but separate issue, the new DUI laws specify that it is a misdemeanor to operate a motor vehicle without an IID when that person's driving record has a notation requiring the same.12 However, the law does not provide for an exception for a person who is driving an employer-owned work vehicle, used during working hours for work-related purposes. Such a person, therefore, may unwittingly be committing a misdemeanor.
Another problematic aspect of the new DUI laws is that a driver who wants to obtain a TRL must first verify that he has a working IID in his vehicle. DOL's processing of the driver's TRL application currently takes approximately 7 to 10 days. Obviously, the legislature did not intend for a driver to maintain and pay for an IID during a period of time in which he cannot use the same. However, that is a direct consequence of Washington's new DUI laws.
In conjunction with House Bill 2660, House Bill 3055 was enacted during the same legislative session. House Bill 3055 was created to change the way breath test evidence is dealt with or otherwise admitted in jury/bench trials. In addition to the numerous problems and concerns which are raised by the enactment of House Bill 2660, House Bill 3055 is in many respects even more problematic. As of the writing of this article, challenges are being brought throughout the State of Washington to address the application and validity of the modified law.
It appears that Washington's new DUI legislation was enacted hastily, and without completely and adequately considering all the ramifications that would arise. These consequences are already adversely affecting the rights of individuals cited for DUI. Undoubtedly, the next legislative session will encompass significant modifications to the already sweeping changes made to the DUI laws earlier this year. Hopefully, these new changes will be intended, and their underlying consequences and ramifications thoroughly considered prior to their enactment.
Endnotes:
1. RCW 46.20.720, RCW 10.05.140
2. RCW 46.20.380, RCW 46.20.391
3. RCW 46.20.391
4. RCW 46.20.391
5. RCW 46.20.391
6. RCW 46.20.391
7. RCW 46.61.5055
8. RCW 46.61.5055, RCW 46.20.3101
9. RCW 46.20.391
10. RCW 46.61.5055, RCW 46.20.3101
11. RCW 46.20.391(1)(b)(i)
12. RCW 46.20.740