ENGROSSED SENATE BILL 5032
State of Washington 68th Legislature 2023 Regular Session
By Senators Padden, Lovick, Conway, Dhingra, Kuderer, Liias, Wagoner,
and L. Wilson
Prefiled 12/08/22. Read first time 01/09/23. Referred to Committee
on Law & Justice.
1 AN ACT Relating to impaired driving; amending RCW 9.94A.030,
2 9.94A.190, 9.94A.501, 9.94A.505, 9.94A.525, 9.94A.633, 9.94A.6332,
3 9.94A.660, 9.94A.701, 10.05.010, 10.05.015, 10.05.020, 10.05.030,
4 10.05.040, 10.05.050, 10.05.060, 10.05.090, 10.05.100, 10.05.120,
5 10.05.140, 10.05.150, 10.05.155, 10.05.170, 46.20.355, 46.20.385,
6 46.20.720, 46.20.740, 46.61.502, 46.61.5055, and 46.61.504; adding a
7 new section to chapter 9.94A RCW; adding a new section to chapter
8 10.05 RCW; providing an effective date; and prescribing penalties.
9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
10 NEW SECTION. Sec. 1. A new section is added to chapter 9.94A
11 RCW to read as follows:
12 (1) An offender is eligible for the special drug offender
13 sentencing alternative for driving under the influence if the
14 offender:
15 (a) Does not have a prior conviction under RCW 46.61.520,
16 46.61.522, 46.61.502(6), or 46.61.504(6); and either
17 (b) Is convicted of felony driving while under the influence of
18 intoxicating liquor, cannabis, or any drug under RCW 46.61.502(6)(a);
19 or
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 1 (c) Is convicted of felony physical control of a vehicle while
2 under the influence of intoxicating liquor or any drug under RCW
3 46.61.504(6)(a).
4 (2) A motion for a special drug offender sentencing alternative
5 for driving under the influence may be made by the court, the
6 offender, or the state if the midpoint of the standard sentence range
7 is 26 months or less. If an offender has a higher midpoint, a motion
8 for a special drug offender sentencing alternative for driving under
9 the influence can only be made by joint agreement of the state and
10 offender.
11 (3) If the sentencing court determines that the offender is
12 eligible for an alternative sentence under this section and that the
13 alternative sentence is appropriate, the court shall waive imposition
14 of a sentence within the standard sentence range and:
15 (a) Impose a sentence equivalent to a prison-based alternative
16 under RCW 9.94A.662, and subject to the same requirements and
17 restrictions as are established in that section, if the low end of
18 the standard sentence range is greater than 24 months; or
19 (b) Impose a sentence consisting of a residential treatment-based
20 alternative consistent with this section if the low end of the
21 standard sentence range is 24 months or less.
22 (4)(a) To assist the court in making its determination, the court
23 may order the department to complete either a risk assessment report
24 or a substance use disorder screening report as provided in RCW
25 9.94A.500, or both.
26 (b) If the court is considering imposing a sentence under the
27 residential substance use disorder treatment-based alternative, the
28 court may order an examination of the offender by the department. The
29 examination shall, at a minimum, address the following issues:
30 (i) Whether the offender suffers from a substance use disorder;
31 (ii) Whether effective treatment for the offender's substance use
32 disorder is available from a provider that has been licensed or
33 certified by the department of health; and
34 (iii) Whether the offender and the community will benefit from
35 the use of the alternative.
36 (5) An offender who is eligible for a residential treatment-based
37 alternative under this section shall be sentenced as follows:
38 (a) If necessary, an indeterminate term of confinement of no more
39 than 30 days in a facility operated, licensed, or utilized under
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 1 contract, by the county in order to facilitate direct transfer to a
2 residential substance use disorder treatment facility;
3 (b) Treatment in a residential substance use disorder treatment
4 program licensed or certified by the department of health for a
5 period set by the court up to six months with treatment completion
6 and continued care delivered in accordance with rules established by
7 the department of health. In establishing rules pursuant to this
8 subsection, the department of health must consider criteria
9 established by the American society of addiction medicine;
10 (c) Twenty-four months of partial confinement to consist of 12
11 months work release followed by 12 months of home detention with
12 electronic monitoring; and
13 (d) Twelve months of community custody.
14 (6)(a) During any period of partial confinement or community
15 custody, the court shall impose treatment and other conditions as
16 provided in RCW 9.94A.703 or as the court considers appropriate.
17 (b) The department may impose conditions and sanctions as
18 authorized in RCW 9.94A.704 and 9.94A.737.
19 (c) The department shall, within available resources, make
20 substance use disorder assessment and treatment services available to
21 the offender.
22 (d) An offender sentenced to community custody under subsection
23 (3)(a) of this section as part of the prison-based alternative or
24 under subsection (3)(b) of this section as part of the residential
25 treatment-based alternative may be required to pay $30 per month
26 while on community custody to offset the cost of monitoring for
27 alcohol or controlled substances.
28 (7)(a) If the court imposes a sentence under subsection (3)(b) of
29 this section, the treatment provider must send the treatment plan to
30 the court within 30 days of the offender's arrival to the residential
31 substance use disorder treatment program.
32 (b) Upon receipt of the plan, the court shall schedule a progress
33 hearing during the period of treatment and schedule a treatment
34 termination hearing for three months before the expiration of the
35 term of community custody.
36 (c) Before the progress hearing and treatment termination
37 hearing, the treatment provider and the department shall submit
38 written reports to the court and parties regarding the offender's
39 compliance with treatment and monitoring requirements and
40 recommendations regarding termination from treatment.
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 1 (8) At a progress hearing or treatment termination hearing, the
2 court may:
3 (a) Authorize the department to terminate the offender's
4 community custody status on the expiration date determined under
5 subsection (7) of this section;
6 (b) Continue the hearing to a date before the expiration date of
7 community custody, with or without modifying the conditions of
8 partial confinement or community custody; or
9 (c) Impose a term of total confinement equal to one-half the
10 midpoint of the standard sentence range, followed by a term of
11 community custody under RCW 9.94A.701.
12 (9)(a) The court may bring any offender sentenced under
13 subsection (3)(a) or (b) of this section back into court at any time
14 on its own initiative to evaluate the offender's progress in
15 treatment or to determine if any violations of the conditions of the
16 sentence have occurred.
17 (b) If the offender is brought back to court, the court may
18 modify the conditions of partial confinement or community custody or
19 order the offender to serve a term of total confinement within the
20 standard sentence range of the offender's current offense at any time
21 during the period of partial confinement or community custody if the
22 offender violates the conditions or requirements of the sentence or
23 if the offender is failing to make satisfactory progress in
24 treatment.
25 (c) An offender ordered to serve a term of total confinement
26 under (b) of this subsection shall receive credit for any time
27 previously served in total confinement or residential treatment under
28 this section and shall receive 50 percent credit for any time
29 previously served in partial confinement or community custody under
30 this section.
31 (10) In serving a term of community custody imposed upon failure
32 to complete, or administrative termination from, the special drug
33 offender sentencing alternative program for driving under the
34 influence under this section, the offender shall receive no credit
35 for time served in community custody prior to termination of the
36 offender's participation in the program.
37 (11) An offender sentenced under this section shall be subject to
38 all rules relating to earned release time with respect to any period
39 served in total or partial confinement.
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1 (12) Costs of examinations and preparing the recommended service
2 delivery plans under a special drug offender sentencing alternative
3 for driving under the influence may be paid, at the option of the
4 county, from funds provided to the county from the criminal justice
5 treatment account under RCW 71.24.580.
6 Sec. 2. RCW 9.94A.030 and 2022 c 231 s 11 are each amended to
7 read as follows:
8 Unless the context clearly requires otherwise, the definitions in
9 this section apply throughout this chapter.
10 (1) "Board" means the indeterminate sentence review board created
11 under chapter 9.95 RCW.
12 (2) "Collect," or any derivative thereof, "collect and remit," or
13 "collect and deliver," when used with reference to the department,
14 means that the department, either directly or through a collection
15 agreement authorized by RCW 9.94A.760, is responsible for monitoring
16 and enforcing the offender's sentence with regard to the legal
17 financial obligation, receiving payment thereof from the offender,
18 and, consistent with current law, delivering daily the entire payment
19 to the superior court clerk without depositing it in a departmental
20 account.
21 (3) "Commission" means the sentencing guidelines commission.
22 (4) "Community corrections officer" means an employee of the
23 department who is responsible for carrying out specific duties in
24 supervision of sentenced offenders and monitoring of sentence
25 conditions.
26 (5) "Community custody" means that portion of an offender's
27 sentence of confinement in lieu of earned release time or imposed as
28 part of a sentence under this chapter and served in the community
29 subject to controls placed on the offender's movement and activities
30 by the department.
31 (6) "Community protection zone" means the area within 880 feet of
32 the facilities and grounds of a public or private school.
33 (7) "Community restitution" means compulsory service, without
34 compensation, performed for the benefit of the community by the
35 offender.
36 (8) "Confinement" means total or partial confinement.
37 (9) "Conviction" means an adjudication of guilt pursuant to Title
38 10 or 13 RCW and includes a verdict of guilty, a finding of guilty,
39 and acceptance of a plea of guilty.
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 1 (10) "Crime-related prohibition" means an order of a court
2 prohibiting conduct that directly relates to the circumstances of the
3 crime for which the offender has been convicted, and shall not be
4 construed to mean orders directing an offender affirmatively to
5 participate in rehabilitative programs or to otherwise perform
6 affirmative conduct. However, affirmative acts necessary to monitor
7 compliance with the order of a court may be required by the
8 department.
9 (11) "Criminal history" means the list of a defendant's prior
10 convictions and juvenile adjudications, whether in this state, in
11 federal court, or elsewhere, and any issued certificates of
12 restoration of opportunity pursuant to RCW 9.97.020.
13 (a) The history shall include, where known, for each conviction
14 (i) whether the defendant has been placed on probation and the length
15 and terms thereof; and (ii) whether the defendant has been
16 incarcerated and the length of incarceration.
17 (b) A conviction may be removed from a defendant's criminal
18 history only if it is vacated pursuant to RCW 9.96.060, 9.94A.640,
19 9.95.240, or a similar out-of-state statute, or if the conviction has
20 been vacated pursuant to a governor's pardon. However, when a
21 defendant is charged with a recidivist offense, "criminal history"
22 includes a vacated prior conviction for the sole purpose of
23 establishing that such vacated prior conviction constitutes an
24 element of the present recidivist offense as provided in RCW
25 9.94A.640(4)(b) and 9.96.060(7)(c).
26 (c) The determination of a defendant's criminal history is
27 distinct from the determination of an offender score. A prior
28 conviction that was not included in an offender score calculated
29 pursuant to a former version of the sentencing reform act remains
30 part of the defendant's criminal history.
31 (12) "Criminal street gang" means any ongoing organization,
32 association, or group of three or more persons, whether formal or
33 informal, having a common name or common identifying sign or symbol,
34 having as one of its primary activities the commission of criminal
35 acts, and whose members or associates individually or collectively
36 engage in or have engaged in a pattern of criminal street gang
37 activity. This definition does not apply to employees engaged in
38 concerted activities for their mutual aid and protection, or to the
39 activities of labor and bona fide nonprofit organizations or their
40 members or agents.
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 1 (13) "Criminal street gang associate or member" means any person
2 who actively participates in any criminal street gang and who
3 intentionally promotes, furthers, or assists in any criminal act by
4 the criminal street gang.
5 (14) "Criminal street gang-related offense" means any felony or
6 misdemeanor offense, whether in this state or elsewhere, that is
7 committed for the benefit of, at the direction of, or in association
8 with any criminal street gang, or is committed with the intent to
9 promote, further, or assist in any criminal conduct by the gang, or
10 is committed for one or more of the following reasons:
11 (a) To gain admission, prestige, or promotion within the gang;
12 (b) To increase or maintain the gang's size, membership,
13 prestige, dominance, or control in any geographical area;
14 (c) To exact revenge or retribution for the gang or any member of
15 the gang;
16 (d) To obstruct justice, or intimidate or eliminate any witness
17 against the gang or any member of the gang;
18 (e) To directly or indirectly cause any benefit, aggrandizement,
19 gain, profit, or other advantage for the gang, its reputation,
20 influence, or membership; or
21 (f) To provide the gang with any advantage in, or any control or
22 dominance over any criminal market sector, including, but not limited
23 to, manufacturing, delivering, or selling any controlled substance
24 (chapter 69.50 RCW); arson (chapter 9A.48 RCW); trafficking in stolen
25 property (chapter 9A.82 RCW); promoting prostitution (chapter 9A.88
26 RCW); human trafficking (RCW 9A.40.100); promoting commercial sexual
27 abuse of a minor (RCW 9.68A.101); or promoting pornography (chapter
28 9.68 RCW).
29 (15) "Day fine" means a fine imposed by the sentencing court that
30 equals the difference between the offender's net daily income and the
31 reasonable obligations that the offender has for the support of the
32 offender and any dependents.
33 (16) "Day reporting" means a program of enhanced supervision
34 designed to monitor the offender's daily activities and compliance
35 with sentence conditions, and in which the offender is required to
36 report daily to a specific location designated by the department or
37 the sentencing court.
38 (17) "Department" means the department of corrections.
39 (18) "Determinate sentence" means a sentence that states with
40 exactitude the number of actual years, months, or days of total
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 1 confinement, of partial confinement, of community custody, the number
2 of actual hours or days of community restitution work, or dollars or
3 terms of a legal financial obligation. The fact that an offender
4 through earned release can reduce the actual period of confinement
5 shall not affect the classification of the sentence as a determinate
6 sentence.
7 (19) "Disposable earnings" means that part of the earnings of an
8 offender remaining after the deduction from those earnings of any
9 amount required by law to be withheld. For the purposes of this
10 definition, "earnings" means compensation paid or payable for
11 personal services, whether denominated as wages, salary, commission,
12 bonuses, or otherwise, and, notwithstanding any other provision of
13 law making the payments exempt from garnishment, attachment, or other
14 process to satisfy a court-ordered legal financial obligation,
15 specifically includes periodic payments pursuant to pension or
16 retirement programs, or insurance policies of any type, but does not
17 inc