CERTIFICATION OF ENROLLMENT
ENGROSSED SUBSTITUTE HOUSE BILL 1140
Chapter 328, Laws of 2021
67th Legislature
2021 Regular Session
LAW ENFORCEMENT CONTACT WITH JUVENILES—ACCESS TO ATTORNEY
EFFECTIVE DATE: January 1, 2022
Passed by the House April 15, 2021 CERTIFICATE
Yeas 56 Nays 41
I, Bernard Dean, Chief Clerk of the
House of Representatives of the
LAURIE JINKINS State of Washington, do hereby
Speaker of the House of certify that the attached is
Representatives ENGROSSED SUBSTITUTE HOUSE BILL
1140 as passed by the House of
Representatives and the Senate on
the dates hereon set forth.
Passed by the Senate April 11, 2021
Yeas 29 Nays 19
BERNARD DEAN
DENNY HECK Chief Clerk
President of the Senate
Approved May 18, 2021 11:53 AM FILED
May 18, 2021
Secretary of State
JAY INSLEE State of Washington
Governor of the State of Washington
 ENGROSSED SUBSTITUTE HOUSE BILL 1140
AS AMENDED BY THE SENATE
Passed Legislature - 2021 Regular Session
State of Washington 67th Legislature 2021 Regular Session
By House Civil Rights & Judiciary (originally sponsored by
Representatives J. Johnson, Frame, Entenman, Sells, Taylor, Santos,
Stonier, Ormsby, Lekanoff, Davis, Hackney, Macri, Callan, Chopp,
Pollet, Ryu, Goodman, Berg, Ramos, Bergquist, Gregerson, Wicks,
Peterson, Thai, Dolan, Bateman, Simmons, Fitzgibbon, and Valdez)
READ FIRST TIME 02/09/21.
1 AN ACT Relating to juvenile access to attorneys when contacted by
2 law enforcement; amending RCW 13.40.140, 2.70.020, and 13.40.020;
3 adding a new section to chapter 13.40 RCW; adding a new section to
4 chapter 2.70 RCW; creating a new section; and providing an effective
5 date.
6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
7 NEW SECTION. Sec. 1. A new section is added to chapter 13.40
8 RCW to read as follows:
9 (1) Except as provided in subsection (4) of this section, law
10 enforcement shall provide a juvenile with access to an attorney for
11 consultation, which may be provided in person, by telephone, or by
12 video conference, before the juvenile waives any constitutional
13 rights if a law enforcement officer:
14 (a) Questions a juvenile during a custodial interrogation;
15 (b) Detains a juvenile based on probable cause of involvement in
16 criminal activity; or
17 (c) Requests that the juvenile provide consent to an evidentiary
18 search of the juvenile or the juvenile's property, dwellings, or
19 vehicles under the juvenile's control.
20 (2) The consultation required by subsection (1) of this section
21 may not be waived.
p. 1 ESHB 1140.SL
 1 (3) Statements made by a juvenile after the juvenile is contacted
2 by a law enforcement officer in a manner described under subsection
3 (1) of this section are not admissible in a juvenile offender or
4 adult criminal court proceeding, unless:
5 (a) The juvenile has been provided with access to an attorney for
6 consultation; and the juvenile provides an express waiver knowingly,
7 intelligently, and voluntarily made by the juvenile after the
8 juvenile has been fully informed of the rights being waived as
9 required under RCW 13.40.140;
10 (b) The statement is for impeachment purposes; or
11 (c) The statement was made spontaneously.
12 (4) A law enforcement officer may question a juvenile without
13 following the requirement in subsection (1) of this section if:
14 (a) The law enforcement officer believes the juvenile is a victim
15 of trafficking as defined in RCW 9A.40.100; however, any information
16 obtained from the juvenile by law enforcement pursuant to this
17 subsection cannot be used in any prosecution of that juvenile; or
18 (b)(i) The law enforcement officer believes that the information
19 sought is necessary to protect an individual's life from an imminent
20 threat;
21 (ii) A delay to allow legal consultation would impede the
22 protection of an individual's life from an imminent threat; and
23 (iii) Questioning by the law enforcement officer is limited to
24 matters reasonably expected to obtain information necessary to
25 protect an individual's life from an imminent threat.
26 (5) After the juvenile has consulted with legal counsel, the
27 juvenile may advise, direct a parent or guardian to advise, or direct
28 legal counsel to advise the law enforcement officer that the juvenile
29 chooses to assert a constitutional right. Any assertion of
30 constitutional rights by the juvenile through legal counsel must be
31 treated by a law enforcement officer as though it came from the
32 juvenile. The waiver of any constitutional rights of the juvenile may
33 only be made according to the requirements of RCW 13.40.140.
34 (6) For purposes of this section, the following definitions
35 apply:
36 (a) "Juvenile" means any individual who is under the
37 chronological age of 18 years; and
38 (b) "Law enforcement officer" means any general authority,
39 limited authority, or specially commissioned Washington peace officer
40 or federal peace officer as those terms are defined in RCW 10.93.020,
p. 2 ESHB 1140.SL
1 including school resource officers as defined in RCW 28A.320.124 and
2 other public officers who are responsible for enforcement of fire,
3 building, zoning, and life and safety codes.
4 Sec. 2. RCW 13.40.140 and 2014 c 110 s 2 are each amended to
5 read as follows:
6 (1) A juvenile shall be advised of ((his or her)) the juvenile's
7 rights when appearing before the court.
8 (2) A juvenile and ((his or her)) the juvenile's parent,
9 guardian, or custodian shall be advised by the court or its
10 representative that the juvenile has a right to be represented by
11 counsel at all critical stages of the proceedings. Unless waived,
12 counsel shall be provided to a juvenile who is financially unable to
13 obtain counsel without causing substantial hardship to himself or
14 herself or the juvenile's family, in any proceeding where the
15 juvenile may be subject to transfer for criminal prosecution, or in
16 any proceeding where the juvenile may be in danger of confinement.
17 The ability to pay part of the cost of counsel does not preclude
18 assignment. In no case may a juvenile be deprived of counsel because
19 of a parent, guardian, or custodian refusing to pay therefor. The
20 juvenile shall be fully advised of ((his or her)) the juvenile's
21 right to an attorney and of the relevant services an attorney can
22 provide.
23 (3) The right to counsel includes the right to the appointment of
24 experts necessary, and the experts shall be required pursuant to the
25 procedures and requirements established by the supreme court.
26 (4) Upon application of a party, the clerk of the court shall
27 issue, and the court on its own motion may issue, subpoenas requiring
28 attendance and testimony of witnesses and production of records,
29 documents, or other tangible objects at any hearing, or such
30 subpoenas may be issued by an attorney of record.
31 (5) All proceedings shall be transcribed verbatim by means which
32 will provide an accurate record.
33 (6) The general public and press shall be permitted to attend any
34 hearing unless the court, for good cause, orders a particular hearing
35 to be closed. The presumption shall be that all such hearings will be
36 open.
37 (7) In all adjudicatory proceedings before the court, all parties
38 shall have the right to adequate notice, discovery as provided in
39 criminal cases, opportunity to be heard, confrontation of witnesses
p. 3 ESHB 1140.SL
 1 except in such cases as this chapter expressly permits the use of
2 hearsay testimony, findings based solely upon the evidence adduced at
3 the hearing, and an unbiased fact finder.
4 (8) A juvenile shall be accorded the same privilege against self-
5 incrimination as an adult and the protections provided in section 1
6 of this act. An extrajudicial statement which would be
7 constitutionally inadmissible in a criminal proceeding may not be
8 received in evidence at an adjudicatory hearing over objection.
9 Evidence illegally seized or obtained, including evidence obtained in
10 violation of section 1 of this act, may not be received in evidence
11 over objection at an adjudicatory hearing to prove the allegations
12 against the juvenile if the evidence would be inadmissible in an
13 adult criminal proceeding. An extrajudicial admission or confession
14 made by the juvenile out of court is insufficient to support a
15 finding that the juvenile committed the acts alleged in the
16 information unless evidence of a corpus delicti is first
17 independently established in the same manner as required in an adult
18 criminal proceeding.
19 (9) Statements, admissions, or confessions made by a juvenile in
20 the course of a mental health or chemical dependency screening or
21 assessment, whether or not the screening or assessment was ordered by
22 the court, shall not be admissible into evidence against the juvenile
23 on the issue of guilt in any juvenile offense matter or adult
24 criminal proceeding, unless the juvenile has placed ((his or her))
25 the juvenile's mental health at issue. The statement is admissible
26 for any other purpose or proceeding allowed by law. This prohibition
27 does not apply to statements, admissions, or confessions made to law
28 enforcement, and may not be used to argue for derivative suppression
29 of other evidence lawfully obtained as a result of an otherwise
30 inadmissible statement, admission, or confession.
31 (10) Waiver of any right which a juvenile has under this chapter
32 must be an express waiver intelligently made by the juvenile after
33 the juvenile has been fully informed of the right being waived,
34 including having access to an attorney for consultation if required
35 under section 1 of this act.
36 (11) Whenever this chapter refers to waiver or objection by a
37 juvenile, the word juvenile shall be construed to refer to a juvenile
38 who is at least ((twelve)) 12 years of age. If a juvenile is under
39 ((twelve)) 12 years of age, the juvenile's parent, guardian, or
p. 4 ESHB 1140.SL
1 custodian shall give any waiver or offer any objection contemplated
2 by this chapter.
3 Sec. 3. RCW 2.70.020 and 2012 c 257 s 1 are each amended to read
4 as follows:
5 The director shall:
6 (1) Administer all state-funded services in the following program
7 areas:
8 (a) Trial court criminal indigent defense, as provided in chapter
9 10.101 RCW;
10 (b) Appellate indigent defense, as provided in this chapter;
11 (c) Representation of indigent parents qualified for appointed
12 counsel in dependency and termination cases, as provided in RCW
13 13.34.090 and 13.34.092;
14 (d) Extraordinary criminal justice cost petitions, as provided in
15 RCW 43.330.190;
16 (e) Compilation of copies of DNA test requests by persons
17 convicted of felonies, as provided in RCW 10.73.170;
18 (f) Representation of indigent respondents qualified for
19 appointed counsel in sexually violent predator civil commitment
20 cases, as provided in chapter 71.09 RCW; and
21 (g) Provide access to attorneys for juveniles contacted by a law
22 enforcement officer for whom a legal consultation is required under
23 section 1 of this act;
24 (2) Submit a biennial budget for all costs related to the
25 office's program areas;
26 (3) Establish administrative procedures, standards, and
27 guidelines for the office's program areas, including cost-efficient
28 systems that provide for authorized recovery of costs;
29 (4) Provide oversight and technical assistance to ensure the
30 effective and efficient delivery of services in the office's program
31 areas;
32 (5) Recommend criteria and standards for determining and
33 verifying indigency. In recommending criteria for determining
34 indigency, the director shall compile and review the indigency
35 standards used by other state agencies and shall periodically submit
36 the compilation and report to the legislature on the appropriateness
37 and consistency of such standards;
p. 5 ESHB 1140.SL
1 (6) Collect information regarding indigent defense services
2 funded by the state and report annually to the advisory committee,
3 the legislature, and the supreme court;
4 (7) Coordinate with the supreme court and the judges of each
5 division of the court of appeals to determine how appellate attorney
6 services should be provided.
7 The office of public defense shall not provide direct
8 representation of clients.
9 NEW SECTION. Sec. 4. A new section is added to chapter 2.70 RCW
10 to read as follows:
11 Subject to the rules of discovery, the office of public defense
12 is authorized to collect identifying information for any youth who
13 speaks with a consulting attorney pursuant to section 1 of this act;
14 provided, however, that such records are exempt from public
15 disclosure.
16 Sec. 5. RCW 13.40.020 and 2019 c 444 s 9 are each amended to
17 read as follows:
18 For the purposes of this chapter:
19 (1) "Assessment" means an individualized examination of a child
20 to determine the child's psychosocial needs and problems, including
21 the type and extent of any mental health, substance abuse, or co-
22 occurring mental health and substance abuse disorders, and
23 recommendations for treatment. "Assessment" includes, but is not
24 limited to, drug and alcohol evaluations, psychological and
25 psychiatric evaluations, records review, clinical interview, and
26 administration of a formal test or instrument;
27 (2) "Community-based rehabilitation" means one or more of the
28 following: Employment; attendance of information classes; literacy
29 classes; counseling, outpatient substance abuse treatment programs,
30 outpatient mental health programs, anger management classes,
31 education or outpatient treatment programs to prevent animal cruelty,
32 or other services including, when appropriate, restorative justice
33 programs; or attendance at school or other educational programs
34 appropriate for the juvenile as determined by the school district.
35 Placement in community-based rehabilitation programs is subject to
36 available funds;
37 (3) "Community-based sanctions" may include one or more of the
38 following:
p. 6 ESHB 1140.SL
 1 (a) A fine, not to exceed ((five hundred dollars)) $500;
2 (b) Community restitution not to exceed ((one hundred fifty)) 150
3 hours of community restitution;
4 (4) "Community restitution" means compulsory service, without
5 compensation, performed for the benefit of the community by the
6 offender as punishment for committing an offense. Community
7 restitution may be performed through public or private organizations
8 or through work crews;
9 (5) "Community supervision" means an order of disposition by the
10 court of an adjudicated youth not committed to the department or an
11 order granting a deferred disposition. A community supervision order
12 for a single offense may be for a period of up to two years for a sex
13 offense as defined by RCW 9.94A.030 and up to one year for other
14 offenses. As a mandatory condition of any term of community
15 supervision, the court shall order the juvenile to refrain from
16 committing new offenses. As a mandatory condition of community
17 supervision, the court shall order the juvenile to comply with the
18 mandatory school attendance provisions of chapter 28A.225 RCW and to
19 inform the school of the existence of this requirement. Community
20 supervision is an individualized program comprised of one or more of
21 the following:
22 (a) Community-based sanctions;
23 (b) Community-based rehabilitation;
24 (c) Monitoring and reporting requirements;
25 (d) Posting of a probation bond;
26 (e) Residential treatment, where substance abuse, mental health,
27 and/or co-occurring disorders have been identified in an assessment
28 by a qualified mental health professional, psychologist,
29 psychiatrist, co-occurring disorder specialist, or substance use
30 disorder professional and a funded bed is available. If a child
31 agrees to voluntary placement in a state-funded long-term evaluation
32 and treatment facility, the case must follow the existing placement
33 procedure including consideration of less restrictive treatment
34 options and medi