Bill Summary – FastDemocracy

S-1422.1
                      SECOND SUBSTITUTE SENATE BILL 5002
     State of Washington         68th Legislature     2023 Regular Session
     By Senate Transportation (originally sponsored by Senators Lovick,
     Liias, Dhingra, Kuderer, McCune, Nguyen, Rolfes, Shewmake, Valdez, C.
     Wilson, J. Wilson, and L. Wilson)
     READ FIRST TIME 02/10/23.
      AN ACT Relating to alcohol concentration; amending RCW 46.61.502,
  46.61.504, 46.61.5055, 46.61.506, 46.20.308, and 46.20.3101; adding a
  new section to chapter 43.59 RCW; adding a new section to chapter
  66.44 RCW; adding a new section to chapter 66.08 RCW; creating a new
  section; prescribing penalties; providing an effective date; and
  providing an expiration date.
  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     NEW SECTION.   Sec. 1.   The legislature finds and declares that
 2021 was the deadliest year on Washington roads since 2006.
 Washington state saw 540 fatal crashes resulting in the death of more
 than 600 people. Half of all serious and fatal crashes are caused by
 driver impairment from drugs and alcohol, and the state saw a 31.3
 percent increase in crashes as the result of an impaired driver
 between 2020 and 2021. This alarming upward trend must be addressed
 if Washington state is going to meet its goal of target zero. The
 increase in Washingtonians choosing to drive while impaired points to
 a need to adjust Washington's impaired driving laws. Utah lowered the
 blood alcohol concentration limit for operating a motor vehicle
 from .08 to .05 in 2019 and found that its fatal crash rate dropped
 by 19.89 percent, and its fatality rate decreased by 18.3 percent.
 Additionally, 22 percent of people who drank alcohol said they
                                       p. 1                         2SSB 5002
  changed their behavior as a result of the new law. The legislature
  further finds that this is a well calibrated policy based on evidence
  that   shows  if   all  states   implemented  a  .05   blood  alcohol
  concentration level, 538 to 1,790 lives would be saved each year, and
  alcohol-related fatalities would decrease by 11.1 percent overall.
  Given the increase in traffic fatalities from impaired driving, the
  legislature declares that it is time to keep Washington's roads safer
  and lower the number of fatal crashes caused by impaired drivers by
  lowering the blood alcohol limit to .05.
     Sec. 2.   RCW 46.61.502 and 2022 c 16 s 40 are each amended to
 read as follows:
     (1) A person is guilty of driving while under the influence of
 intoxicating liquor, cannabis, or any drug if the person drives a
 vehicle within this state:
     (a) And the person has, within two hours after driving, an
 alcohol concentration of ((0.08)) 0.05 or higher as shown by analysis
 of the person's breath or blood made under RCW 46.61.506; or
     (b) 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
     (c) While the person is under the influence of or affected by
 intoxicating liquor, cannabis, or any drug; or
     (d) While the person is under the combined influence of or
 affected by intoxicating liquor, cannabis, 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)) 0.05 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.
                                     p. 2                        2SSB 5002
     (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 cannabis 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 or
 pretrial hearing in the case of the defendant's intent to assert the
 affirmative defense.
     (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)) 0.05 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
 cannabis 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 B felony punishable under chapter 9.94A RCW, or
 chapter 13.40 RCW if the person is a juvenile, if:
     (a) The person has three or more prior offenses within ((ten)) 10
 years as defined in RCW 46.61.5055; or
     (b) The person has ever previously been convicted of:
     (i) Vehicular homicide while under the influence of intoxicating
 liquor or any drug, RCW 46.61.520(1)(a);
     (ii) Vehicular assault while under the influence of intoxicating
 liquor or any drug, RCW 46.61.522(1)(b);
     (iii) An out-of-state offense comparable to the offense specified
 in (b)(i) or (ii) of this subsection; or
     (iv) A violation of this subsection (6) or RCW 46.61.504(6).
                                     p. 3                        2SSB 5002
     Sec. 3.   RCW 46.61.504 and 2022 c 16 s 42 are each amended to
 read as follows:
     (1) A person is guilty of being in actual physical control of a
 motor vehicle while under the influence of intoxicating liquor or any
 drug if the person has actual physical control of a vehicle within
 this state:
     (a) And the person has, within two hours after being in actual
 physical control of the vehicle, an alcohol concentration of ((0.08))
 0.05 or higher as shown by analysis of the person's breath or blood
 made under RCW 46.61.506; or
     (b) The person has, within two hours after being in actual
 physical control of a vehicle, a THC concentration of 5.00 or higher
 as shown by analysis of the person's blood made under RCW 46.61.506;
 or
     (c) While the person is under the influence of or affected by
 intoxicating liquor or any drug; or
     (d) While the person is under the combined influence of or
 affected by intoxicating liquor 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 does not constitute a defense against any charge of violating
 this section. No person may be convicted under this section and it is
 an affirmative defense to any action pursuant to RCW 46.20.308 to
 suspend, revoke, or deny the privilege to drive if, prior to being
 pursued by a law enforcement officer, the person has moved the
 vehicle safely off the roadway.
     (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 being in actual
 physical control of the vehicle 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)) 0.05 or more within two hours
 after being in such control. 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
                                     p. 4                        2SSB 5002
 sufficient quantity of cannabis after the time of being in actual
 physical control of the vehicle 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 being in
 control of the vehicle. 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.
     (4)(a) Analyses of blood or breath samples obtained more than two
 hours after the alleged being in actual physical control of a vehicle
 may be used as evidence that within two hours of the alleged being in
 such control, a person had an alcohol concentration of ((0.08)) 0.05
 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 being in actual physical control of a vehicle may be used
 as evidence that within two hours of the alleged being in control of
 the vehicle, 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
 cannabis 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 RCW, or
 chapter 13.40 RCW if the person is a juvenile, if:
     (a) The person has three or more prior offenses within ((ten)) 10
 years as defined in RCW 46.61.5055; or
     (b) The person has ever previously been convicted of:
     (i) Vehicular homicide while under the influence of intoxicating
 liquor or any drug, RCW 46.61.520(1)(a);
     (ii) Vehicular assault while under the influence of intoxicating
 liquor or any drug, RCW 46.61.522(1)(b);
     (iii) An out-of-state offense comparable to the offense specified
 in (b)(i) or (ii) of this subsection; or
     (iv) A violation of this subsection (6) or RCW 46.61.502(6).
                                     p. 5                        2SSB 5002
     Sec. 4. RCW 46.61.5055 and 2020 c 330 s 15 are each amended to
 read as follows:
     (1) No prior offenses in seven years. Except as provided in RCW
 46.61.502(6) or 46.61.504(6), a person who is convicted of a
 violation of RCW 46.61.502 or 46.61.504 and who has no prior offense
 within seven years shall be punished as follows:
     (a) Penalty for alcohol concentration less than 0.15. In the case
 of a person whose alcohol concentration was less than 0.15, or for
 whom for reasons other than the person's refusal to take a test
 offered pursuant to RCW 46.20.308 there is no test result indicating
 the person's alcohol concentration:
     (i) By imprisonment for not less than ((twenty-four)) 24
 consecutive hours nor more than ((three hundred sixty-four)) 364
 days. In lieu of the mandatory minimum term of imprisonment required
 under this subsection (1)(a)(i), the court, in its discretion, may
 order not less than ((fifteen)) 15 days of electronic home monitoring
 or a ((ninety-day)) 90-day period of 24/7 sobriety program
 monitoring. The court may consider the offender's pretrial 24/7
 sobriety program monitoring as fulfilling a portion of posttrial
 sentencing. The offender shall pay the cost of electronic home
 monitoring. The county or municipality in which the penalty is being
 imposed shall determine the cost. The court may also require the
 offender's electronic home monitoring device or other separate
 alcohol   monitoring   device   to  include  an   alcohol   detection
 breathalyzer, and the court may restrict the amount of alcohol the
 offender may consume during the time the offender is on electronic
 home monitoring; and
     (ii) By a fine of not less than ((three hundred fifty dollars))
 $350 nor more than ((five thousand dollars)) $5,000. ((Three hundred
 fifty dollars)) $350 of the fine may not be suspended unless the
 court finds the offender to be indigent; or
     (b) Penalty for alcohol concentration at least 0.15. In the case
 of a person whose alcohol concentration was at least 0.15, or for
 whom by reason of the person's refusal to take a test offered
 pursuant to RCW 46.20.308 there is no test result indicating the
 person's alcohol concentration:
     (i) By imprisonment for not less than ((forty-eight)) 48
 consecutive hours nor more than ((three hundred sixty-four days))
 364. In lieu of the mandatory minimum term of imprisonment required
 under this subsection (1)(b)(i), the court, in its discretion, may
                                     p. 6                        2SSB 5002
 order not less than ((thirty)) 30 days of electronic home monitoring
 or a ((one hundred twenty day)) 120-day period of 24/7 sobriety
 program monitoring. The court may consider the offender's pretrial
 24/7 sobriety program testing as fulfilling a portion of posttrial
 sentencing. The offender shall pay the cost of electronic home
 monitoring. The county or municipality in which the penalty is being
 imposed shall determine the cost. The court may also require the
 offender's electronic home monitoring device to include an alcohol
 detection breathalyzer or other separate alcohol monitoring device,
 and the court may restrict the amount of alcohol the offender may
 consume during the time the offender is on electronic home
 monitoring; and
     (ii) By a fine of not less than ((five hundred dollars)) $500 nor
 more than ((five thousand dollars)) $5,000. ((Five hundred dollars))
 $500 of the fine may not be suspended unless the court finds the
 offender to be indigent.
     (2) One prior offense in seven years. Except as provided in RCW
 46.61.502(6) or 46.61.504(6), a person who is convicted of a
 violation of RCW 46.61.502 or 46.61.504 and who has one prior offense
 within seven years shall be punished as follows:
     (a) Penalty for alcohol concentration less than 0.15. In the case
 of a person whose alcohol concentration was less than 0.15, or for
 whom for reasons other than the person's refusal to take a test
 offered pursuant to RCW 46.20.308 there is no test result indicating
 the person's alcohol concentration:
     (i) By imprisonment for not less than ((thirty)) 30 days nor more
 than ((three hundred sixty-four)) 364 days and ((sixty)) 60 days of
 electronic home monitoring. Thirty days of imprisonment and ((sixty))
 60 days of electronic home monitoring may not be suspended or
 converted unless the court finds that the imposition of this
 mandatory minimum sentence would impose a substantial risk to the
 offender's physical or mental well-being. If the offender shows that
 the imposition of this mandatory minimum sentence would impose a
 substantial risk to the offender's physical or mental well-being, in
 lieu of the mandatory term of imprisonment and electronic home
 monitoring under this subsection (2)(a)(i), the court may order a
 minimum of either ((one hundred eighty)) 180 days of electronic home
 monitoring or a ((one hundred twenty-day)) 120-day period of 24/7
 sobriety program monitoring pursuant to RCW 36.28A.300 through
 36.28A.390. Whenever the mandatory minimum sentence is suspended or
                                     p. 7                        2SSB 5002
 converted, the court shall state in writing the reason for granting
 the suspension or conversion and the facts upon which the suspension
 or conversion is based. The court may consider the offender's
 pretrial 24/7 sobriety program monitoring as fulfilling a portion of
 posttrial sentencing. The court shall order an expanded substance use