(1) Any person who operates a motor vehicle within this state is
deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for
the purpose of determining the alcohol concentration or presence
of any drug in his or her breath or blood if arrested for any
offense where, at the time of the arrest, the arresting officer
has reasonable grounds to believe the person had been driving or
was in actual physical control of a motor vehicle while under the
influence of intoxicating liquor or any drug or was in violation
of RCW 46.61.503. Neither consent nor this section precludes a
police officer from obtaining a search warrant for a person's
breath or blood.
(2) The test or tests of breath shall be administered at the
direction of a law enforcement officer having reasonable grounds
to believe the person to have been driving or in actual physical
control of a motor vehicle within this state while under the
influence of intoxicating liquor or any drug or the person to
have been driving or in actual physical control of a motor
vehicle while having alcohol in a concentration in violation of
RCW 46.61.503 in his or her system and being under the age of
twenty-one. However, in those instances where the person is
incapable due to physical injury, physical incapacity, or other
physical limitation, of providing a breath sample or where the
person is being treated in a hospital, clinic, doctor's office,
emergency medical vehicle, ambulance, or other similar facility
or where the officer has reasonable grounds to believe that the
person is under the influence of a drug, a blood test shall be
administered by a qualified person as provided in RCW 46.61.506(5). The officer shall inform the person of his or her
right to refuse the breath or blood test, and of his or her right
to have additional tests administered by any qualified person of
his or her choosing as provided in RCW 46.61.506. The officer
shall warn the driver, in substantially the following language,
that:
(a) If the driver refuses to take the test, the driver's
license, permit, or privilege to drive will be revoked or denied
for at least one year; and
(b) If the driver refuses to take the test, the driver's
refusal to take the test may be used in a criminal trial; and
(c) If the driver submits to the test and the test is
administered, the driver's license, permit, or privilege to drive
will be suspended, revoked, or denied for at least ninety days if
the driver is age twenty-one or over and the test indicates the
alcohol concentration of the driver's breath or blood is 0.08 or
more, or if the driver is under age twenty-one and the test
indicates the alcohol concentration of the driver's breath or
blood is 0.02 or more, or if the driver is under age twenty-one
and the driver is in violation of RCW 46.61.502 or 46.61.504.
(3) Except as provided in this section, the test
administered shall be of the breath only. If an individual is
unconscious or is under arrest for the crime of vehicular
homicide as provided in RCW 46.61.520 or vehicular assault as
provided in RCW 46.61.522, or if an individual is under arrest
for the crime of driving while under the influence of
intoxicating liquor or drugs as provided in RCW 46.61.502, which
arrest results from an accident in which there has been serious
bodily injury to another person, a breath or blood test may be
administered without the consent of the individual so arrested.
(4) Any person who is dead, unconscious, or who is otherwise
in a condition rendering him or her incapable of refusal, shall
be deemed not to have withdrawn the consent provided by
subsection (1) of this section and the test or tests may be
administered, subject to the provisions of RCW 46.61.506, and the
person shall be deemed to have received the warnings required
under subsection (2) of this section.
(5) If, following his or her arrest and receipt of warnings
under subsection (2) of this section, the person arrested refuses
upon the request of a law enforcement officer to submit to a test
or tests of his or her breath or blood, no test shall be given
except as authorized under subsection (3) or (4) of this section.
(6) If, after arrest and after the other applicable
conditions and requirements of this section have been satisfied,
a test or tests of the person's blood or breath is administered
and the test results indicate that the alcohol concentration of
the person's breath or blood is 0.08 or more if the person is age
twenty-one or over, or 0.02 or more if the person is under the
age of twenty-one, or the person refuses to submit to a test, the
arresting officer or other law enforcement officer at whose
direction any test has been given, or the department, where
applicable, if the arrest results in a test of the person's
blood, shall:
(a) Serve notice in writing on the person on behalf of the
department of its intention to suspend, revoke, or deny the
person's license, permit, or privilege to drive as required by
subsection (7) of this section;
(b) Serve notice in writing on the person on behalf of the
department of his or her right to a hearing, specifying the steps
he or she must take to obtain a hearing as provided by subsection
(8) of this section;
(c) Mark the person's Washington state driver's license or
permit to drive, if any, in a manner authorized by the
department;
(d) Serve notice in writing that the marked license or
permit, if any, is a temporary license that is valid for sixty
days from the date of arrest or from the date notice has been
given in the event notice is given by the department following a
blood test, or until the suspension, revocation, or denial of the
person's license, permit, or privilege to drive is sustained at a
hearing pursuant to subsection (8) of this section, whichever
occurs first. No temporary license is valid to any greater
degree than the license or permit that it replaces; and
(e) Immediately notify the department of the arrest and
transmit to the department within seventy-two hours, except as
delayed as the result of a blood test, a sworn report or report
under a declaration authorized by RCW 9A.72.085 that states:
(i) That the officer had reasonable grounds to believe the
arrested person had been driving or was in actual physical
control of a motor vehicle within this state while under the
influence of intoxicating liquor or drugs, or both, or was under
the age of twenty-one years and had been driving or was in actual
physical control of a motor vehicle while having an alcohol
concentration in violation of RCW 46.61.503;
(ii) That after receipt of the warnings required by
subsection (2) of this section the person refused to submit to a
test of his or her blood or breath, or a test was administered
and the results indicated that the alcohol concentration of the
person's breath or blood was 0.08 or more if the person is age
twenty-one or over, or was 0.02 or more if the person is under
the age of twenty-one; and
(iii) Any other information that the director may require by
rule.
(7) The department of licensing, upon the receipt of a sworn
report or report under a declaration authorized by RCW 9A.72.085
under subsection (6)(e) of this section, shall suspend, revoke,
or deny the person's license, permit, or privilege to drive or
any nonresident operating privilege, as provided in RCW 46.20.3101, such suspension, revocation, or denial to be
effective beginning sixty days from the date of arrest or from
the date notice has been given in the event notice is given by
the department following a blood test, or when sustained at a
hearing pursuant to subsection (8) of this section, whichever
occurs first.
(8) A person receiving notification under subsection (6)(b)
of this section may, within thirty days after the notice has been
given, request in writing a formal hearing before the department.
The person shall pay a fee of two hundred dollars as part of the
request. If the request is mailed, it must be postmarked within
thirty days after receipt of the notification. Upon timely
receipt of such a request for a formal hearing, including receipt
of the required two hundred dollar fee, the department shall
afford the person an opportunity for a hearing. The department
may waive the required two hundred dollar fee if the person is an
indigent as defined in RCW 10.101.010. Except as otherwise
provided in this section, the hearing is subject to and shall be
scheduled and conducted in accordance with RCW 46.20.329 and 46.20.332. The hearing shall be conducted in the county of the
arrest, except that all or part of the hearing may, at the
discretion of the department, be conducted by telephone or other
electronic means. The hearing shall be held within sixty days
following the arrest or following the date notice has been given
in the event notice is given by the department following a blood
test, unless otherwise agreed to by the department and the
person, in which case the action by the department shall be
stayed, and any valid temporary license marked under subsection
(6)(c) of this section extended, if the person is otherwise
eligible for licensing. For the purposes of this section, the
scope of the hearing shall cover the issues of whether a law
enforcement officer had reasonable grounds to believe the person
had been driving or was in actual physical control of a motor
vehicle within this state while under the influence of
intoxicating liquor or any drug or had been driving or was in
actual physical control of a motor vehicle within this state
while having alcohol in his or her system in a concentration of
0.02 or more if the person was under the age of twenty-one,
whether the person was placed under arrest, and (a) whether the
person refused to submit to the test or tests upon request of the
officer after having been informed that such refusal would result
in the revocation of the person's license, permit, or privilege
to drive, or (b) if a test or tests were administered, whether
the applicable requirements of this section were satisfied before
the administration of the test or tests, whether the person
submitted to the test or tests, or whether a test was
administered without express consent as permitted under this
section, and whether the test or tests indicated that the alcohol
concentration of the person's breath or blood was 0.08 or more if
the person was age twenty-one or over at the time of the arrest,
or 0.02 or more if the person was under the age of twenty-one at
the time of the arrest. The sworn report or report under a
declaration authorized by RCW 9A.72.085 submitted by a law
enforcement officer is prima facie evidence that the officer had
reasonable grounds to believe the person had been driving or was
in actual physical control of a motor vehicle within this state
while under the influence of intoxicating liquor or drugs, or
both, or the person had been driving or was in actual physical
control of a motor vehicle within this state while having alcohol
in his or her system in a concentration of 0.02 or more and was
under the age of twenty-one and that the officer complied with
the requirements of this section.
A hearing officer shall conduct the hearing, may issue
subpoenas for the attendance of witnesses and the production of
documents, and shall administer oaths to witnesses. The hearing
officer shall not issue a subpoena for the attendance of a
witness at the request of the person unless the request is
accompanied by the fee required by RCW 5.56.010 for a witness in
district court. The sworn report or report under a declaration
authorized by RCW 9A.72.085 of the law enforcement officer and
any other evidence accompanying the report shall be admissible
without further evidentiary foundation and the certifications
authorized by the criminal rules for courts of limited
jurisdiction shall be admissible without further evidentiary
foundation. The person may be represented by counsel, may
question witnesses, may present evidence, and may testify. The
department shall order that the suspension, revocation, or denial
either be rescinded or sustained.
(9) If the suspension, revocation, or denial is sustained
after such a hearing, the person whose license, privilege, or
permit is suspended, revoked, or denied has the right to file a
petition in the superior court of the county of arrest to review
the final order of revocation by the department in the same
manner as an appeal from a decision of a court of limited
jurisdiction. Notice of appeal must be filed within thirty days
after the date the final order is served or the right to appeal
is waived. Notwithstanding RCW 46.20.334, RALJ 1.1, or other
statutes or rules referencing de novo review, the appeal shall be
limited to a review of the record of the administrative hearing.
The appellant must pay the costs associated with obtaining the
record of the hearing before the hearing officer. The filing of
the appeal does not stay the effective date of the suspension,
revocation, or denial. A petition filed under this subsection
must include the petitioner's grounds for requesting review.
Upon granting petitioner's request for review, the court shall
review the department's final order of suspension, revocation, or
denial as expeditiously as possible. The review must be limited
to a determination of whether the department has committed any
errors of law. The superior court shall accept those factual
determinations supported by substantial evidence in the record:
(a) That were expressly made by the department; or (b) that may
reasonably be inferred from the final order of the department.
The superior court may reverse, affirm, or modify the decision of
the department or remand the case back to the department for
further proceedings. The decision of the superior court must be
in writing and filed in the clerk's office with the other papers
in the case. The court shall state the reasons for the decision.
If judicial relief is sought for a stay or other temporary remedy
from the department's action, the court shall not grant such
relief unless the court finds that the appellant is likely to
prevail in the appeal and that without a stay the appellant will
suffer irreparable injury. If the court stays the suspension,
revocation, or denial it may impose conditions on such stay.
(10)(a) If a person whose driver's license, permit, or
privilege to drive has been or will be suspended, revoked, or
denied under subsection (7) of this section, other than as a
result of a breath or blood test refusal, and who has not
committed an offense for which he or she was granted a deferred
prosecution under chapter 10.05 RCW, petitions a court for a
deferred prosecution on criminal charges arising out of the
arrest for which action has been or will be taken under
subsection (7) of this section, or notifies the department of
licensing of the intent to seek such a deferred prosecution, then
the license suspension or revocation shall be stayed pending
entry of the deferred prosecution. The stay shall not be longer
than one hundred fifty days after the date charges are filed, or
two years after the date of the arrest, whichever time period is
shorter. If the court stays the suspension, revocation, or
denial, it may impose conditions on such stay. If the person is
otherwise eligible for licensing, the department shall issue a
temporary license, or extend any valid temporary license marked
under subsection (6) of this section, for the period of the stay.
If a deferred prosecution treatment plan is not recommended in
the report made under RCW 10.05.050, or if treatment is rejected
by the court, or if the person declines to accept an offered
treatment plan, or if the person violates any condition imposed
by the court, then the court shall immediately direct the
department to cancel the stay and any temporary marked license or
extension of a temporary license issued under this subsection.
(b) A suspension, revocation, or denial imposed under this
section, other than as a result of a breath or blood test
refusal, shall be stayed if the person is accepted for deferred
prosecution as provided in chapter 10.05 RCW for the incident
upon which the suspension, revocation, or denial is based. If
the deferred prosecution is terminated, the stay shall be lifted
and the suspension, revocation, or denial reinstated. If the
deferred prosecution is completed, the stay shall be lifted and
the suspension, revocation, or denial canceled.
(c) The provisions of (b) of this subsection relating to a
stay of a suspension, revocation, or denial and the cancellation
of any suspension, revocation, or denial do not apply to the
suspension, revocation, denial, or disqualification of a person's
commercial driver's license or privilege to operate a commercial
motor vehicle.
(11) When it has been finally determined under the
procedures of this section that a nonresident's privilege to
operate a motor vehicle in this state has been suspended,
revoked, or denied, the department shall give information in
writing of the action taken to the motor vehicle administrator of
the state of the person's residence and of any state in which he
or she has a license.
[2005 c 314 § 307; 2005 c 269 § 1. Prior: 2004 c 187 § 1; 2004 c 95 § 2; 2004 c 68 § 2; prior: 1999 c 331 § 2; 1999 c 274 § 2; prior: 1998 c 213 § 1; 1998 c 209 § 1; 1998 c 207 § 7; 1998 c 41 § 4; 1995 c 332 § 1; 1994 c 275 § 13; 1989 c 337 § 8; 1987 c 22 § 1; prior: 1986 c 153 § 5; 1986 c 64 § 1; 1985 c 407 § 3; 1983 c 165 § 2; 1983 c 165 § 1; 1981 c 260 § 11; prior: 1979 ex.s. c 176 § 3; 1979 ex.s. c 136 § 59; 1979 c 158 § 151; 1975 1st ex.s. c 287 § 4; 1969 c 1 § 1 (Initiative Measure No. 242, approved November 5, 1968).]
NOTES:
Reviser's note: This section was amended by 2005 c 269 § 1 and by 2005 c 314 § 307, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).
Effective date -- 2005 c 314 §§ 101-107, 109, 303-309, and 401: See note following RCW 46.68.290.
Part headings not law -- 2005 c 314: See note following RCW 46.17.010.
Effective date -- 2004 c 187 §§ 1, 5, 7, 8, and 10: "Sections 1, 5, 7, 8, and 10 of this act take effect July 1, 2005." [2004 c 187 § 11.]
Contingent effect -- 2004 c 95 § 2: "Section 2 of this act takes effect if section 2 of Substitute House Bill No. 3055 is enacted into law." [2004 c 95 § 17.] 2004 c 68 § 2 was enacted into law, effective June 10, 2004.
Finding -- Intent -- 2004 c 68: "The legislature finds that
previous attempts to curtail the incidence of driving while
intoxicated have been inadequate. The legislature further finds
that property loss, injury, and death caused by drinking drivers
continue at unacceptable levels. This act is intended to convey
the seriousness with which the legislature views this problem.
To that end the legislature seeks to ensure swift and certain
consequences for those who drink and drive.
To accomplish this goal, the legislature adopts standards
governing the admissibility of tests of a person's blood or
breath. These standards will provide a degree of uniformity that
is currently lacking, and will reduce the delays caused by
challenges to various breath test instrument components and
maintenance procedures. Such challenges, while allowed, will no
longer go to admissibility of test results. Instead, such
challenges are to be considered by the finder of fact in deciding
what weight to place upon an admitted blood or breath test
result.
The legislature's authority to adopt standards governing the
admissibility of evidence involving alcohol is well established
by the Washington Supreme Court. See generally State v. Long,
113 Wn.2d 266, 778 P.2d 1027 (1989); State v. Sears, 4 Wn.2d 200,
215, 103 P.2d 337 (1940) (the legislature has the power to enact
laws which create rules of evidence); State v. Pavelich, 153
Wash. 379, 279 P. 1102 (1929) ("rules of evidence are substantive
law")." [2004 c 68 § 1.]
Effective date -- 1999 c 331: See note following RCW 9.94A.525.
Effective date -- 1998 c 213: "This act takes effect January 1, 1999." [1998 c 213 § 9.]
Effective date -- 1998 c 209: "This act takes effect January 1, 1999." [1998 c 209 § 6.]
Effective date -- 1998 c 207: See note following RCW 46.61.5055.
Intent -- Construction -- Effective date -- 1998 c 41: See notes following RCW 46.20.265.
Severability -- 1995 c 332: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1995 c 332 § 23.]
Effective dates -- 1995 c 332: "This act shall take effect September 1, 1995, except for sections 13 and 22 of this act which are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [May 11, 1995]." [1995 c 332 § 24.]
Short title -- Effective date -- 1994 c 275: See notes following RCW 46.04.015.
Effective dates -- 1985 c 407: See note following RCW 46.04.480.
Legislative finding, intent -- 1983 c 165: "The legislature finds that previous attempts to curtail the incidence of driving while intoxicated have been inadequate. The legislature further finds that property loss, injury, and death caused by drinking drivers have reached unacceptable levels. This act is intended to convey the seriousness with which the legislature views this problem. To that end the legislature seeks to insure swift and certain punishment for those who drink and drive. The legislature does not intend to discourage or deter courts and other agencies from directing or providing treatment for problem drinkers. However, it is the intent that such treatment, where appropriate, be in addition to and not in lieu of the sanctions to be applied to all those convicted of driving while intoxicated." [1983 c 165 § 44.]
Effective dates -- 1983 c 165: "Sections 2, 3 through 12, 14, 16, 18, 22, 24, and 26 of chapter 165, Laws of 1983 shall take effect on January 1, 1986. The remainder of chapter 165, Laws of 1983 is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1983. The director of licensing may immediately take such steps as are necessary to insure that all sections of chapter 165, Laws of 1983 are implemented on their respective effective dates." [1984 c 219 § 1; 1983 c 165 § 47.]
Severability -- 1983 c 165: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1983 c 165 § 48.]
Severability -- 1979 ex.s. c 176: See note following RCW 46.61.502.
Effective date -- Severability -- 1979 ex.s. c 136: See notes following RCW 46.63.010.
Severability, implied consent law -- 1969 c 1: See RCW 46.20.911.
Liability of medical personnel withdrawing blood: RCW 46.61.508.
Refusal of test -- Admissibility as evidence: RCW 46.61.517.