The Washington State Legislature passed Substitute House Bill 6279 on March 5, 2014, and it was signed by the Governor on March 27, 2014. This new law, which becomes effective on June 12, 2014, allows a district or municipal court judge in which an offense is alleged to have occurred, to authorize a search warrant for persons or evidence located anywhere in the state. This is a big departure from the previous law, which only allowed municipal and district court judges to authorize a warrant located in the county in which the judge served.
Additionally, applications for warrants can now be made by electronic devices, including email, using electronic or digital signatures. In fact, if the request comes from a law enforcement agency-issued cell phone, the officer need only include a name and badge number without any signature or other authentication. Previously, officers could only get warrants via telephone and had to have actual signatures, so it also required a fax.
Similarly, judges can authorize warrants simply by email or other electronic response. This law seemingly provides for more immediate access to judges for cops seeking warrants, but one has to wonder whether veracity loses out to convenience in this deal. This law dispenses with a lot of the traditional trappings of trustworthiness solemnity and formality underlying judicial authority to restrict civil liberties. Only time will tell if the “electronic substitutes” are an adequate replacement.
Sometimes I wonder if the theory of “separation of powers” actually means anything. In practice, it seems more like linguistic calisthenics than anything else – if we call it by a fancy term, people will think it’s okay.
Last year, the Washington State Supreme Court issued its decision in the case of State vs. Ortega, 177 Wash.2d 116 (2013), which clarified that police officers do not have statutory arrest authority for misdemeanor crimes (as opposed to felonies) that were not witnessed by them. In other words, for most misdemeanor offenses the officer who makes the arrest must have some personal knowledge of the criminal activity and cannot rely solely on the observations of other officers. Civil liberties groups were thrilled that the Court issued a decision protecting individual privacy rights. Or did it?
Well, apparently our Legislature has an easy fix when the Judiciary points out a problem. Substitute House Bill 2057, which becomes effective on June 12, 2014, allows warrantless arrests for misdemeanors committed “in the presence of an officer” (vs. “the” officer). This gives much broader statutory authority to law enforcement, and in essence “undoes” the Ortega ruling.
This is partly a fight between branches of government for control, but also somewhat of an end-around that troublesome separation of powers doctrine. Here, the Supreme Court spelled out for the Legislature what the problem was and how to fix it, and the Legislature duly followed the Court’s directions. The end result is that the courts are not “checking and balancing” the power of congress, but rather assisting legislators in how to best draft their laws to achieve the result they want.
Have you received a Washington administrative license suspension following a Washington State DUI arrest and wanted to appeal but didn’t because you would have to give up the option of driving on an Ignition Interlock License (IIL)? In 2008, the Legislature passed a statute (RCW 46.20.385(1)(b)) that forced drivers to choose between appealing a bad ruling by a DOL Hearing Examiner and driving on an IIL during the suspension period. Under this scheme, appealing an erroneous decision meant, in most cases, that those drivers had no ability to drive whatsoever during the suspension, whereas drivers who did not challenge the suspension were able to use the IIL.
Fortunately, this grossly unfair disparity was challenged and the Washington Court of Appeals ruled that the DOL’s system was unlawful. Nielsen vs. Department of Licensing, 177 Wash. App. 45 (2013), argued by attorney Ryan B. Robertson, held that the statute was unconstitutional because it deprived drivers of meaningful access to judicial review of administrative suspension. In other words, it was unreasonable to burden a driver’s ability to appeal a license suspension by forcing them to forgo the benefit of using an IIL.
This development was an important step in securing drivers’ rights and protecting procedural fairness. The problem now is that the statute itself has not yet been changed, so it still suggests that obtaining an IIL will result in a waiver of the right to appeal an adverse decision. Thus there is still some public confusion about drivers’ rights following an administrative suspension ruling. For additional information, consulting an attorney who handles DUI defense in Washington can help clarify your individual circumstances.
The Washington Department of Licensing (DOL) has a reputation for being deceptive in its correspondence with drivers, and rightfully so. One of the biggest sources of confusion stems from the Notices of Suspension issued by DOL in the event of a conviction or an administrative action stemming from a DUI arrest. Far from a “model of clarity,” these Washington licenses suspension notices do not include many important details, including the fact that a driver may be eligible to obtain an ignition interlock license (IIL), which would enable them to drive during the suspension period. Also absent is any information as to what the qualifications are for an IIL, or instructions on how to obtain one.
Thus, many drivers don’t even realize that they can use an IIL to drive during a period of license suspension. Although the law provides this option, drivers relying solely on the written notice from DOL would never know it exists.
Similarly, the notices of suspension following conviction do not include an itemized list of what an individual driver must do to reinstate his/her driving privileges. For example, the DOL’s letter may refer to an interlock device and proof of financial responsibility in general, but fails to detail the length of such requirements and doesn’t mention such items as when re-testing is mandated and/or when proof of compliance with required treatment is necessary.
The moral of this story is that correspondence produced by the Department of Licensing is often not complete, and drivers should make their own inquiries to determine their eligibility for driving options and reinstatement.
We get a lot of phone calls from people trying to figure out how to get their driving privileges back in the event of a Washington State license suspension following a DUI arrest, or similar charge. A lot of confusion stems from a lack of understanding about the difference between what can be done during a license suspension versus what should happen after the suspension period is over.
During any period of license suspension resulting from an alcohol related arrest (whether the suspension is the result of an administrative action or a conviction in court), the only means by which a person can drive is by using the Ignition Interlock License. This requires three steps: 1) provide proof of financial responsibility (usually by way of SR-22 insurance), 2) provide proof of installation of the device, and 3) mail in the IIL application form with the required $100.00 fee (there is no indigency waiver option for the application fee). The insurance and interlock companies will send proof directly to DOL, so the driver need only mail the application and fee. Please keep in mind that DOL will not process the application until the driver’s record reflects proof of the insurance and interlock.
After the period of suspension is over, the driver may be eligible to reinstate driving privileges, which means getting a new plastic license, but there may be conditions attached. For example, for a person convicted of driving under the influence, an ignition interlock device requirement may follow a suspension period. Also, proof of completion of the alcohol assessment and compliance with recommended treatment is also required as a condition of reinstatement (*** this is not required for using the IIL during the suspension period). A driver may also have to re-test in order to reinstate, even if they have continued to operate a vehicle using the IIL during a license suspension. The DOL imposes a re-testing requirement for any suspension that is longer than 90 days in length, regardless of whether or not the person remains driving with the IIL during the suspension.
Hopefully this brief summary helps clear up some confusion for drivers facing a suspension (during which they can use the IIL) and/or needing to reinstate after a suspension (which can require the interlock device, re-testing, reinstatement fees, and/or proof of treatment compliance).
Many people understand that a conviction in Washington State for vehicular homicide or vehicular assault will come with a license suspension. What most folks don’t know, however, is that the license suspension does not begin until after any period of confinement is completed. In essence, the Department of Licensing will not allow a license suspension to run while the person is presumably not driving since he/she is in custody.
When someone is convicted of vehicular homicide or vehicular assault, the court sends a notice to the Dept. of Licensing containing the details of the sentence, including the length of confinement. This information is what the DOL uses to compute the start date for the suspension. For example, if someone is given a sentence of 90 days in jail, the license suspension (whatever its length) will not begin until at least ninety days have passed. The problem is that this system does not account for early release credit, or “good time.” The DOL has no way of knowing what the actual release date is for an individual, so it works on the assumption that everyone always serves the complete terms of confinement.
This means that drivers must take affirmative action to inform DOL of their actual release date, so that the suspension commencement can be re-adjusted. This can be done by providing the Department of Corrections Order of Release to the mandatory suspension unit at DOL. This can be particularly important for people transferred to a work release facility who are eligible to obtain an ignition interlock license for driving during the suspension period.
Sometimes, a person convicted for a vehicular homicide or vehicular assault offense is sentenced to a term on confinement but permitted to serve the entire period on work release. If the court does not properly note this on the abstract of conviction that it sends to the court, then DOL will assume the sentence is for total confinement. Therefore, it is very important to ensure that the report of conviction accurately reflects the court’s sentence and that drivers follow up with documentation upon their release from confinement.
Washington’s DUI laws were recently amended to include a “per se” marijuana offense, meaning that if a person drives with a THC concentration of 5.0 or higher that person can be convicted of DUI, and/or suffer administrative license consequences. Although prior to 2013 a driver could be cited for driving under the influence of drugs other than alcohol, there was never a particular level set by the legislature that on its own would require a license suspension through DOL. Now, if a blood test reflects 5.0 or more, no other evidence of intoxication is required, and the DOL can initiate a license suspension proceeding.
There are several interesting twists to the application of the new law. One is that the laws related to licensing consequences for commercial driving – that is driving IN A COMMERCIAL VEHICLE – were not similarly amended. Under RCW 46.25.120 and RCW 46.25.090, a license disqualification is based on either 1) refusing the test or 2) an alcohol concentration over .04. The legislature did not add any provisions permitting administrative disqualifications for tests with positive drug levels. Although an officer suspecting drugs is authorized to request a blood test under these statutes, there is no mandatory administrative license disqualification unless the person refuses the test or the alcohol concentration is over .04 (.02 for those under 21).
While this is probably a legislative oversight more than anything else, it creates a strange dichotomy in the law whereby there are potentially greater penalties for driving personal vehicles than for driving commercial vehicles. This remains something to watch for in the future.
The alcohol monitoring ankle bracelet, commonly known as SCRAM, which is being ordered by courts all over Washington as a method of monitoring DUI defendants, can give positive results for alcohol even if a defendant has not had a single drink.
The device, called a ”Secure Continuous Remote Alcohol Monitor,” or SCRAM for short, takes the form of a bulky ankle bracelet and tests a person’s blood alcohol level through perspiration. It wirelessly updates the monitoring company or probation every 30 minutes. Judges all over Seattle, King County, and Washington State have been quick to adopt this technology as a way to ensure that DUI defendants are not consuming alcohol in violation of their court orders.
An ignition interlock license is a license that permits one to drive during a period of license suspension resulting from a DUI arrest or conviction, so long as the vehicle being driven is equipped with an ignition interlock device and SR22 insurance is in place. See RCW 46.20.385.
Whenever you see a DUI arrest documented on one of the police television police shows, there is always a videotape of the driving, the field sobriety tests, and other parts of the processing. Sometimes, the video also includes the actual breath test. People expect that DUI arrests will be recorded.