SB 5032 — Extending the felony driving under the influence lookback to 15 years while providing additional treatment options through the creation of a drug offender sentencing alternative for driving under the influence. (REVISED FOR ENGROSSED: Concerning impaired driving. )

The office of financial managementp. shall set the rate of reimbursement based upon the average per diem cost per offender in the facility.

20 ESB 5032 management shall set the rate of reimbursement based upon the average per diem cost per offender in the facility.

(3) A person who is sentenced for a felony to a term of not more than one year, and who is committed or returned to incarceration in a p.state facility on another felony conviction, either under the indeterminate sentencing laws, chapter 9.95 RCW, or under this chapter shall serve all terms of confinement, including a sentence of not more than one year, in a facility or institution operated, or utilized under contract, by the state, consistent with the provisions of RCW 9.94A.589.

20 SB 5032 state facility on another felony conviction, either under the indeterminate sentencing laws, chapter 9.95 RCW, or under this chapter shall serve all terms of confinement, including a sentence of not more than one year, in a facility or institution operated, or utilized under contract, by the state, consistent with the provisions of RCW 9.94A.589.

and (ii)p. A prior conviction for a repetitive domestic violence offense or domestic violence felony offense where domestic violence has been pleaded and proven after August 1, 2011.

21 ESB 5032 (ii) A prior conviction for a repetitive domestic violence offense or domestic violence felony offense where domestic violence has been pleaded and proven after August 1, 2011.

p.(4) Notwithstanding any other provision of this section, the department shall supervise an offender sentenced to community custody regardless of risk classification if the offender:

21 SB 5032 (4) Notwithstanding any other provision of this section, the department shall supervise an offender sentenced to community custody regardless of risk classification if the offender:

or (h)p. Was convicted and sentenced under RCW 46.61.520 (vehicular homicide), RCW 46.61.522 (vehicular assault), RCW 46.61.502(6) (felony DUI), or RCW 46.61.504(6) (felony physical control).

22 ESB 5032 (h) Was convicted and sentenced under RCW 46.61.520 (vehicular homicide), RCW 46.61.522 (vehicular assault), RCW 46.61.502(6) (felony DUI), or RCW 46.61.504(6) (felony physical control).

p.(7) The department shall conduct a risk assessment for every felony offender sentenced to a term of community custody who may be subject to supervision under this section or RCW 9.94A.5011.

22 SB 5032 (7) The department shall conduct a risk assessment for every felony offender sentenced to a term of community custody who may be subject to supervision under this section or RCW 9.94A.5011.

(viii)p. RCW 9.94A.670, relating to the special sex offender sentencing alternative;

23 ESB 5032 (viii) RCW 9.94A.670, relating to the special sex offender sentencing alternative;

p.(((xiii))) (xiv) RCW 9.94A.603, relating to felony driving while under the influence of intoxicating liquor or any drug and felony physical control of a vehicle while under the influence of intoxicating liquor or any drug;

23 SB 5032 (((xiii))) (xiv) RCW 9.94A.603, relating to felony driving while under the influence of intoxicating liquor or any drug and felony physical control of a vehicle while under the influence of intoxicating liquor or any drug;

(6) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solelyp. in regard to the offense for which the offender is being sentenced.

24 ESB 5032 solely in regard to the offense for which the offender is being sentenced.

p.(d) Reckless burning in the first or second degree as defined in RCW 9A.48.040 or 9A.48.050;

24 SB 5032 (d) Reckless burning in the first or second degree as defined in RCW 9A.48.040 or 9A.48.050;

RCW 9.94A.525 and 20212023 c 215415 s 1002 are each amended to read as follows:

(1)(1)(a) A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed.

(2)(a) Class A and sex prior felony convictions shall always be included in the offender score.

(b) Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction.

25 SBESB 5032 (c)(b) ExceptFor asthe providedpurposes in (e) of this subsection,section, classadjudications Cof priorguilt felonypursuant convictionsto otherTitle than13 sexRCW offenseswhich shallare not bemurder included in the offenderfirst scoreor if,second sincedegree theor lastclass dateA of release from confinement (including full-time residential treatment) pursuant to a felony conviction,sex ifoffenses any,may ornot entrybe ofincluded judgmentin and sentence, the offender hadscore. spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

(2)(a) Class A and sex prior felony convictions shall always be included in the offender score.

(b) Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ((ten)) 10 consecutive years in the community without committing any crime that subsequently results in a conviction.

(c) Except as provided in (e) of this subsection, class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

(f)p. Prior convictions for a repetitive domestic violence offense, as defined in RCW 9.94A.030, shall not be included in the offender score if, since the last date of release from confinement or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction.

(g)26 ThisESB subsection5032 applies(f) toPrior bothconvictions adultfor a repetitive domestic violence offense, as defined in RCW 9.94A.030, shall not be included in the offender score if, since the last date of release from confinement or entry of judgment and juvenilesentence, priorthe convictions.offender had spent ((ten)) 10 consecutive years in the community without committing any crime that subsequently results in a conviction.

(g) This subsection applies to both prior adult convictions and prior juvenile adjudications.

IfNeither thereout-of-state isor nofederal clearlyconvictions comparablewhich offensewould have been presumptively adjudicated in juvenile court under Washington law ormay be included in the offenseoffender isscore oneunless thatthey isare p.comparable to murder in the first or second degree or a class A felony sex offense.

26If SBthere 5032is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute.

The current sentencing court may presume that such other prior offenses were not the same criminal conduct from sentences imposed on separate dates, or in separate counties or jurisdictions,p. or in separate complaints, indictments, or informations;

(ii)27 InESB the5032 casejurisdictions, ofor multiplein priorseparate convictionscomplaints, forindictments, offensesor committedinformations; before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense.

(ii) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all convictions or adjudications served concurrently as one offense.

p.When these convictions are used as criminal history, score them the same as a completed crime.

27(7) SBIf 5032the Whenpresent theseconviction convictionsis arefor useda asnonviolent criminaloffense history,and scorenot themcovered theby samesubsection as(11), a(12), completedor crime.(13) of this section, count one point for each adult prior felony conviction and one point for each juvenile prior violent felony conviction which is scorable under subsection (1)(b) of this section.

(7)(8) If the present conviction is for a nonviolentviolent offense and not covered byin subsection (9), (10), (11), (12), or (13) of this section, count onetwo pointpoints for each prior adult priorviolent felony conviction and onejuvenile pointviolent forfelony eachconviction juvenilewhich prioris violentscorable felonyunder convictionsubsection (1)(b) of this section, and 1/2one point for each juvenile prior adult nonviolent felony conviction.

(8)(9) If the present conviction is for a serious violent offenseoffense, andcount notthree coveredpoints infor subsectionprior (9),adult (10),convictions (11),and (12),juvenile orconvictions (13)which are scorable under subsection (1)(b) of this section,section countfor crimes in this category, two points for each prior adult and scorable juvenile violent felonyconviction conviction,(not onealready pointcounted), for each prior adult nonviolent felony conviction, and 1/2one point for each prior juvenileadult nonviolent felony conviction.

(9) If the present conviction is for a serious violent offense, count three points for prior adult and juvenile convictions for crimes in this category, two points for each prior adult and juvenile violent conviction (not already counted), one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolent felony conviction.

however count two points for each prior adult Burglary 2 or residential burglary conviction, and one point for each prior juvenile Burglary 2 or residential burglary conviction.

(11) If the present conviction is for a felony traffic offense count two points for each adult or juvenile prior conviction for Vehicular Homicide or Vehicularp. Assault;

for28 eachESB felony5032 offenseVehicular countAssault; one point for each adult and 1/2 point for each juvenile prior conviction;

for each seriousfelony trafficoffense offense, other than those used for an enhancement pursuant to RCW 46.61.520(2), count one point for each adult prior conviction and 1/2 point for each juvenile prior conviction;conviction which is scorable under subsection (1)(b) of this section;

for each serious traffic offense, other than those used for an enhancement pursuant to RCW 46.61.520(2), count one point for each adult prior conviction and 1/2 point for each juvenile prior conviction forwhich operationis ofscorable a vessel while under thesubsection influence(1)(b) of intoxicatingthis liquorsection; or any drug.

(12)count Ifone thepoint present conviction is for homicideeach byadult watercraftprior orconviction assault by watercraft count two points for eachoperation adultof ora juvenilevessel priorwhile convictionunder forthe homicideinfluence byof watercraftintoxicating liquor or assaultany bydrug watercraft;;

count one point for eacha felonydeferred offenseprosecution countgranted oneunder pointchapter 10.05 RCW for eacha adultsecond andor 1/2subsequent pointviolation forof eachRCW juvenile46.61.502 prioror conviction;46.61.504, or an equivalent local ordinance.

count(12) oneIf pointthe present conviction is for eachhomicide adultby andwatercraft 1/2or pointassault by watercraft count two points for each juvenileadult prior conviction for drivinghomicide underby p.watercraft or assault by watercraft;

28for SBeach 5032felony theoffense influencecount ofone intoxicatingpoint liquorfor oreach anyadult drug,prior actualconviction physicaland control1/2 ofpoint afor motoreach vehiclejuvenile whileprior underconviction thewhich influencewould ofbe intoxicatingscorable liquor or any drug, or operation of a vessel while under thesubsection influence(1)(b) of intoxicatingthis liquorsection; or any drug.

(13)count Ifone thepoint presentfor convictioneach isadult prior conviction for manufacturedriving under the influence of methamphetamineintoxicating countliquor threeor pointsany fordrug, eachactual adultphysical priorcontrol manufactureof a motor vehicle while under the influence of methamphetamineintoxicating convictionliquor andor twoany pointsdrug, foror eachoperation juvenileof manufacturea vessel while under the influence of methamphetamineintoxicating offense.liquor or any drug.

(13) If the present conviction is for amanufacture drugof offensemethamphetamine and the offender has a criminal history that includes a sex offense or serious violent offense, count three points for each adult prior felonymanufacture drugof offensemethamphetamine convictionconviction. and two points for each juvenile drug offense.

AllIf otherthe adultpresent andconviction juvenileis feloniesfor area scoreddrug asoffense inand subsectionthe (8)offender ofhas thisa sectioncriminal ifhistory thethat currentincludes druga sex offense is violent, or asserious inviolent subsectionoffense, (7)count ofthree thispoints sectionfor ifeach theadult currentprior felony drug offense isconviction. nonviolent.

(14)All Ifother thefelonies presentare convictionscored isas forin Escapesubsection from(8) Communityof Custody,this RCWsection 72.09.310,if countthe onlycurrent priordrug escapeoffense convictionsis violent, or as in subsection (7) of this section if the offendercurrent score.drug offense is nonviolent.

Count(14) adultIf priorthe escapepresent convictionsconviction asis onefor pointEscape andfrom juvenileCommunity Custody, RCW 72.09.310, count only adult prior escape convictions asin 1/2the point.offender score.

(15)Count If the present conviction is for Escape 1, RCW 9A.76.110, or Escape 2, RCW 9A.76.120, count adult prior convictionsescape as one point and juvenile prior convictions as 1/2one point.

(16)(15) If the present conviction is for BurglaryEscape 21, RCW 9A.76.110, or residentialEscape burglary,2, RCW 9A.76.120, count priorsadult prior convictions as inone point and juvenile prior convictions which are scorable under subsection (7)(1)(b) of this section;section as 1/2 point.

however, count two points for each adult and juvenile prior Burglary 1 conviction, two points for each adult prior Burglary 2 or residential burglary conviction, and one point for each juvenile prior Burglary 2 or residential burglary conviction.

(17) If the present conviction is for a sex offense, count priors as in subsections (7) through (11) and (13) through (16) of this section;

however count three points for each adult and juvenile prior sex offense conviction.

(18) If the present conviction is for failure to register as a sex offender under RCW ((9A.44.130 or)) 9A.44.132, count priors as in subsections (7) through (11) and (13) through (16) of this section;

however count three points for each adult and juvenile prior sex offense conviction, excluding prior convictions for failure to register as a sex offender under RCW ((9A.44.130 or)) 9A.44.132, which shall count as one point.

29 SBESB 5032 (19)(16) If the present conviction is for anBurglary offense2 committedor whileresidential theburglary, offendercount waspriors underas communityin custody,subsection add(7) oneof point.this section;

however, count two points for each prior Burglary 1 conviction, and two points for each prior Burglary 2 or residential burglary conviction.

(17) If the present conviction is for a sex offense, count priors as in subsections (7) through (11) and (13) through (16) of this section;

however, count three points for each adult prior sex offense conviction and juvenile prior class A felony sex offense adjudication.

(18) If the present conviction is for failure to register as a sex offender under RCW 9A.44.130 or 9A.44.132, count priors as in subsections (7) through (11) and (13) through (16) of this section;

however, count three points for each adult prior sex offense conviction and juvenile prior sex offense conviction which is scorable under subsection (1)(b) of this section, excluding adult prior convictions for failure to register as a sex offender under RCW 9A.44.130 or 9A.44.132, which shall count as one point.

(19) If the present conviction is for an offense committed while the offender was under community custody, add one point.

however count one point for prior convictions of Vehicle Prowling 2, and three points for each adult and juvenile prior Theft 1 (of a motor vehicle), Theft 2 (of a motor vehicle), Possession of Stolen Property 1 (of a motor vehicle), Possession of Stolen Property 2 (of a motor vehicle), Theft of a Motor Vehicle, Possession of a Stolen Vehicle, Taking a Motor Vehicle Without Permission 1, or Taking a Motor Vehicle Without Permission 2 conviction.

A felony violation of a no-contact or protection order (RCW 7.105.450 or formerp. RCW 26.50.110), felony Harassment (RCW 9A.46.020(2)(b)), felony Stalking (RCW 9A.46.110(5)(b)), Burglary 1 (RCW 9A.52.020), Kidnapping 1 (RCW 9A.40.020), Kidnapping 2 (RCW 9A.40.030), Unlawful imprisonment (RCW 9A.40.040), Robbery 1 (RCW 9A.56.200), Robbery 2 (RCW 9A.56.210), Assault 1 (RCW 9A.36.011), Assault 2 (RCW 9A.36.021), Assault 3 (RCW 9A.36.031), Arson 1 (RCW 9A.48.020), or Arson 2 (RCW 9A.48.030);

30 ESB 5032 former RCW 26.50.110), felony Harassment (RCW 9A.46.020(2)(b)), felony Stalking (RCW 9A.46.110(5)(b)), Burglary 1 (RCW 9A.52.020), Kidnapping 1 (RCW 9A.40.020), Kidnapping 2 (RCW 9A.40.030), Unlawful imprisonment (RCW 9A.40.040), Robbery 1 (RCW 9A.56.200), Robbery 2 (RCW 9A.56.210), Assault 1 (RCW 9A.36.011), Assault 2 (RCW 9A.36.021), Assault 3 (RCW 9A.36.031), Arson 1 (RCW 9A.48.020), or Arson 2 (RCW 9A.48.030);

and (c) Count one point for each secondadult andprior subsequentconviction juvenilefor convictiona repetitive domestic violence offense as defined in RCW 9.94A.030, where domestic violence as defined in RCW 9.94A.0309.94A.030, was p.pleaded and proven after August 1, 2011.

30 SB 5032 pleaded and proven after August 1, 2011, for the offenses listed in (a) of this subsection;

and (d) Count one point for each adult prior conviction for a repetitive domestic violence offense as defined in RCW 9.94A.030, where domestic violence as defined in RCW 9.94A.030, was pleaded and proven after August 1, 2011.

(b) In lieu of confinement, an offender may be sanctioned with work release, home detention with electronic monitoring, work crew, communityp. restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other community-based sanctions.

31 ESB 5032 community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other community-based sanctions.

p.(b) If the offender was sentenced under the drug offender sentencing alternative set out in RCW 9.94A.660, the offender may be sanctioned in accordance with that section.

31 SB 5032 (b) If the offender was sentenced under the drug offender sentencing alternative set out in RCW 9.94A.660, the offender may be sanctioned in accordance with that section.

The department shall have authority to issue a warrant for the arrest of anp. offender who violates a condition of community custody, as provided in RCW 9.94A.716.

32 ESB 5032 an offender who violates a condition of community custody, as provided in RCW 9.94A.716.

p.Sec.

32 SB 5032 Sec.

(((7)))p. (8) If the offender was sentenced pursuant to RCW 10.95.030(3) or 10.95.035, any sanctions shall be imposed by the board pursuant to RCW 9.95.435.

33 ESB 5032 (((7))) (8) If the offender was sentenced pursuant to RCW 10.95.030(3) or 10.95.035, any sanctions shall be imposed by the board pursuant to RCW 9.95.435.

p.Sec.

33 SB 5032 Sec.

(e) For a violation of the uniform controlled substances act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantityp. of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance;

34 ESB 5032 quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance;

p.(3) If the sentencing court determines that the offender is eligible for an alternative sentence under this section and that the alternative sentence is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under RCW 9.94A.662 or a residential substance use disorder treatment-based alternative under RCW 9.94A.664.

34 SB 5032 (3) If the sentencing court determines that the offender is eligible for an alternative sentence under this section and that the alternative sentence is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under RCW 9.94A.662 or a residential substance use disorder treatment-based alternative under RCW 9.94A.664.

(b)p. ((Whether the substance use disorder is such that there is a probability that criminal behavior will occur in the future;

35 ESB 5032 (b) ((Whether the substance use disorder is such that there is a probability that criminal behavior will occur in the future;

(a) The court may impose conditions as provided in RCW 9.94A.703 and may impose other affirmative conditions as the court considers p.appropriate.

35 SB 5032 appropriate.

(8)p. In serving a term of community custody imposed upon failure to complete, or administrative termination from, the special drug offender sentencing alternative program, the offender shall receive no credit for time served in community custody prior to termination of the offender's participation in the program.

36 ESB 5032 (8) In serving a term of community custody imposed upon failure to complete, or administrative termination from, the special drug offender sentencing alternative program, the offender shall receive no credit for time served in community custody prior to termination of the offender's participation in the program.

The Washington state institute p.for public policy may coordinate with the department and the caseload forecast council in tracking data and preparing the report.

36 SB 5032 for public policy may coordinate with the department and the caseload forecast council in tracking data and preparing the report.

or (d)p. A felony violation of RCW 9A.44.132(1) (failure to register) that is the offender's first violation for a felony failure to register.

37 ESB 5032 (d) A felony violation of RCW 9A.44.132(1) (failure to register) that is the offender's first violation for a felony failure to register.

p.(5) If an offender is sentenced under the special sex offender sentencing alternative, the court shall impose community custody as provided in RCW 9.94A.670.

37 SB 5032 (5) If an offender is sentenced under the special sex offender sentencing alternative, the court shall impose community custody as provided in RCW 9.94A.670.

RCW 10.05.010 and 2019 c 263 s 701 are each amended to read as follows:

(1) In a court of limited jurisdiction a person charged with a misdemeanor or gross misdemeanor may petition the court to be considered for a deferred prosecution ((program)).

The petition shall p.

38 ESB 5032 be filed with the court at least seven days before the date set for trial but, upon a written motion and affidavit establishing good cause for the delay and failure to comply with this section, the court may waive this requirement subject to the defendant's reimbursement to the court of the witness fees and expenses due for subpoenaed witnesses who have appeared on the date set for trial.

A person charged with a misdemeanor or gross misdemeanor shall not be eligible for a deferred prosecution unless the court makes specific findings pursuant to RCW 10.05.020.

(2) A person charged with a ((traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW, or a misdemeanor or gross misdemeanor domestic violence offense,)) violation of RCW 46.61.502 or 46.61.504 shall not be eligible for a deferred prosecution ((program)) unless the court makes specific findings pursuant to RCW 10.05.020.

A person ((may not participate in a deferred prosecution program for a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW if he or she has participated in a deferred prosecution program for a prior traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW, and a person may not participate in a deferred prosecution program for a misdemeanor or gross misdemeanor domestic violence offense if he or she has participated in a deferred prosecution program for a prior domestic violence offense)) who petitions the court for the deferred prosecution and participates in the deferred prosecution under this chapter for his or her first violation of RCW 46.61.502 or 46.61.504 is eligible to petition the court for a second deferred prosecution for the person's next violation of RCW 46.61.502 or 46.61.504 when the person has no other prior convictions defined as a "prior offense" under RCW 46.61.5055.

The person's first deferred prosecution shall not be considered a prior offense for the purpose of granting a second deferred prosecution.

Separate offenses committed more than seven days apart may not be consolidated in a single program.

(3) A person charged with a misdemeanor or a gross misdemeanor under chapter 9A.42 RCW shall not be eligible for a deferred prosecution ((program)) unless the court makes specific findings pursuant to RCW 10.05.020.

Such person shall not be eligible for a deferred prosecution ((program)) more than once.

p.

39 ESB 5032 (4) A person is not eligible for a deferred prosecution ((program)) if the misdemeanor or gross misdemeanor domestic violence offense was originally charged as a felony offense in superior court.

(5) A person may petition a court for a second deferred prosecution while still under the jurisdiction of a court for the person's first deferred prosecution;

however, the first deferred prosecution shall be revoked prior to the entry of the second deferred prosecution.

(6) A person may not be on two deferred prosecutions at the same time unless separate offenses are committed within seven days of each other and the person petitions to consolidate each offense into a single deferred prosecution.

(7) A person charged with a misdemeanor or gross misdemeanor for a violation of RCW 46.61.502 or 46.61.504 who does not participate in a deferred prosecution for his or her first violation of RCW 46.61.502 or 46.61.504 remains eligible to petition the court for a deferred prosecution pursuant to the terms of this section and specific findings made under RCW 10.05.020.

Such person shall not be eligible for a deferred prosecution more than once.

Sec.

12.

RCW 10.05.015 and 2019 c 263 s 702 are each amended to read as follows:

At the time of arraignment a person charged with a violation of RCW 46.61.502 or 46.61.504 or a misdemeanor or gross misdemeanor domestic violence offense may be given a statement by the court that explains the availability, operation, and effects of the deferred prosecution ((program)).

Sec.

13.

RCW 10.05.020 and 2021 c 215 s 115 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, the petitioner shall allege under oath in the petition that the wrongful conduct charged is the result of or caused by substance use disorders or mental ((problems)) health disorders or domestic violence behavior problems for which the person is in need of treatment and unless treated the probability of future recurrence is great, along with a statement that the person agrees to pay the cost of a diagnosis and treatment of the alleged problem or problems if financially able to do so.

The petition shall also contain a case history and written assessment prepared by an approved ((substance use disorder treatment p.

40 ESB 5032 program)) behavioral health agency, approved for mental health services or substance use disorder services, as designated in chapter 71.24 RCW ((if the petition alleges a substance use disorder, by an approved mental health center if the petition alleges a mental problem,)) or by a state-certified domestic violence treatment provider pursuant to RCW 43.20A.735 ((if the petition alleges a domestic violence behavior problem)).

(2) In the case of a petitioner charged with a misdemeanor or gross misdemeanor under chapter 9A.42 RCW, the petitioner shall allege under oath in the petition that the petitioner is the natural or adoptive parent of the alleged victim;

that the wrongful conduct charged is the result of parenting problems for which the petitioner is in need of services;

that the petitioner is in need of child welfare services under chapter 74.13 RCW to improve his or her parenting skills in order to better provide his or her child or children with the basic necessities of life;

that the petitioner wants to correct his or her conduct to reduce the likelihood of harm to his or her minor children;

that in the absence of child welfare services the petitioner may be unable to reduce the likelihood of harm to his or her minor children;

and that the petitioner has cooperated with the department of ((social and health services)) children, youth, and families to develop a plan to receive appropriate child welfare services;

along with a statement that the person agrees to pay the cost of the services if he or she is financially able to do so.

The petition shall also contain a case history and a written service plan from the department of ((social and health services)) children, youth, and families.

(3) Before entry of an order deferring prosecution, a petitioner shall be advised of his or her rights as an accused and execute, as a condition of receiving treatment, a statement that contains:

(a) An acknowledgment of his or her rights;

(b) an acknowledgment and waiver of the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial;

(c) a stipulation to the admissibility and sufficiency of the facts contained in the written police report;

and (d) an acknowledgment that the statement will be entered and used to support a finding of guilty if the court finds cause to revoke the order granting deferred prosecution.

The petitioner shall also be advised that he or she may, if he or she proceeds to trial and is found guilty, be allowed to seek suspension p.

41 ESB 5032 of some or all of the fines and incarceration that may be ordered upon the condition that he or she seek treatment and, further, that he or she may seek treatment from public and private agencies at any time without regard to whether or not he or she is found guilty of the offense charged.

He or she shall also be advised that the court will not accept a petition for deferred prosecution from a person who:

(i) Sincerely believes that he or she is innocent of the charges;

(ii) sincerely believes that he or she does not, in fact, suffer from ((alcoholism, drug addiction, mental problems)) a substance use disorder, a mental health disorder, or domestic violence behavior problems;

or (iii) in the case of a petitioner charged under chapter 9A.42 RCW, sincerely believes that he or she does not need child welfare services.

(4) Before entering an order deferring prosecution, the court shall make specific findings that:

(a) The petitioner has stipulated to the admissibility and sufficiency of the facts as contained in the written police report;

(b) the petitioner has acknowledged the admissibility of the stipulated facts in any criminal hearing on the underlying offense or offenses held subsequent to revocation of the order granting deferred prosecution;

(c) the petitioner has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial;

and (d) the petitioner's statements were made knowingly and voluntarily.

Such findings shall be included in the order granting deferred prosecution.

Sec.

14.

RCW 10.05.030 and 2023 c 102 s 17 are each amended to read as follows:

The arraigning judge upon consideration of the petition may continue the arraignment and refer such person for a diagnostic investigation and evaluation to:

(1) ((An approved substance use disorder treatment program)) A state-approved behavioral health agency, approved for substance use disorder services, as designated in chapter 71.24 RCW if the petition alleges a substance use disorder;

(2) ((An approved mental health center)) A state-approved behavioral health agency, approved for mental health services, as designated in chapter 71.24 RCW, if the petition alleges a mental ((problem)) health disorder;

p.

42 ESB 5032 (3) The department of ((social and health services)) children, youth, and families if the petition is brought under RCW 10.05.020(2);

or (4) An approved state-certified domestic violence treatment provider pursuant to RCW 43.20A.735 if the petition alleges a domestic violence behavior problem.

Sec.

15.

RCW 10.05.040 and 2018 c 201 s 9005 are each amended to read as follows:

The program to which such person is referred, or the department of ((social and health services)) children, youth, and families if the petition is brought under RCW 10.05.020(2), shall conduct an investigation and examination to determine:

(1) Whether the person suffers from the problem described;

(2) Whether the problem is such that if not treated, or if no child welfare services are provided, there is a probability that similar misconduct will occur in the future;

(3) Whether extensive and long term treatment is required;

(4) Whether effective treatment or child welfare services for the person's problem are available;

and (5) Whether the person is ((amenable)):

(a) Amenable to treatment as demonstrated by (i) completion of residential treatment;

(ii) completion of a minimum of 18 hours of intensive outpatient treatment, for substance use disorder petitions;

(iii) completion of a minimum of six mental health sessions, for mental health disorder petitions;

or (iv) completion of a minimum of six domestic violence treatment sessions for domestic violence petitions;

or (b) willing to cooperate with child welfare services.

The requirement for completing a minimum number of sessions may be waived if the court finds good cause.

Sec.

16.

RCW 10.05.050 and 2018 c 201 s 9006 are each amended to read as follows:

(1) The program, or the department of ((social and health services)) children, youth, and families if the petition is brought under RCW 10.05.020(2), shall make a written report to the court stating its findings and recommendations after the examination required by RCW 10.05.040.

If its findings and recommendations support treatment or the implementation of a child welfare service p.

43 ESB 5032 plan, it shall also recommend a treatment or service plan setting out:

(a) The type;

(b) Nature;

(c) Length;

(d) A treatment or service time schedule;

and (e) Approximate cost of the treatment or child welfare services.

(2) In the case of a child welfare service plan, the plan shall be designed in a manner so that a parent who successfully completes the plan will not be likely to withhold the basic necessities of life from his or her child.

(3) The report with the treatment or service plan shall be filed with the court and a copy given to the petitioner and petitioner's counsel.

A copy of the treatment or service plan shall be given to the prosecutor by petitioner's counsel at the request of the prosecutor.

The evaluation facility, or the department of ((social and health services)) children, youth, and families if the petition is brought under RCW 10.05.020(2), making the written report shall append to the report a commitment by the treatment program or the department of ((social and health services)) children, youth, and families that it will provide the treatment or child welfare services in accordance with this chapter.

The facility or the service provider shall agree to provide the court with a statement ((every three months for the first year and every six months for the second year)) monthly regarding (a) the petitioner's cooperation with the treatment or child welfare service plan proposed and (b) the petitioner's progress or failure in treatment or child welfare services.

These statements shall be made as a declaration by the person who is personally responsible for providing the treatment or services.

Sec.

17.

RCW 10.05.060 and 2009 c 135 s 1 are each amended to read as follows:

If the report recommends treatment, the court shall examine the treatment plan.

If it approves the plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost thereof, if able to do so, or arrange for the treatment, an entry shall be made upon the person's court docket showing that the person has been accepted for deferred prosecution.

A copy of the treatment plan shall be filed with the court.

If the charge be one that an abstract of the docket showing the charge, the date of the violation p.

44 ESB 5032 for which the charge was made, and the date of petitioner's acceptance is required to be sent to the department of licensing, an abstract shall be sent, and the department of licensing shall make an entry of the charge and of the petitioner's acceptance for deferred prosecution on the department's driving record of the petitioner.

The entry is not a conviction for purposes of Title 46 RCW.

Upon receipt of the abstract of the docket, the department shall issue the petitioner a probationary license in accordance with RCW 46.20.355, and the petitioner's driver's license shall be on probationary status for five years from the date of the violation that gave rise to the charge.

The department shall maintain the record ((for ten years from date of entry of the order granting deferred prosecution)) consistent with the requirements of RCW 46.01.260.

Sec.

18.

RCW 10.05.090 and 2010 c 269 s 10 are each amended to read as follows:

If a petitioner, who has been accepted for a deferred prosecution, fails or neglects to carry out and fulfill any term or condition of the petitioner's treatment plan or any term or condition imposed in connection with the installation of an interlock or other device under RCW 46.20.720, the facility, center, institution, or agency administering the treatment or the entity administering the use of the device, shall immediately report such breach to the court, the prosecutor, and the petitioner or petitioner's attorney of record, together with its recommendation.

The court upon receiving such a report shall hold a hearing to determine whether the petitioner should be removed from the deferred prosecution ((program)).

At the hearing, evidence shall be taken of the petitioner's alleged failure to comply with the treatment plan or device installation and the petitioner shall have the right to present evidence on his or her own behalf.

The court shall either order that the petitioner continue on the treatment plan or be removed from deferred prosecution.

If removed from deferred prosecution, the court shall enter judgment pursuant to RCW 10.05.020 and, if the charge for which the deferred prosecution was granted was a misdemeanor or gross misdemeanor under Title 46 RCW, shall notify the department of licensing of the removal and entry of judgment.

Sec.

19.

RCW 10.05.100 and 1998 c 208 s 2 are each amended to read as follows:

p.

45 ESB 5032 If a petitioner is subsequently convicted of a similar offense that was committed while the petitioner was in a deferred prosecution ((program)), upon notice the court shall remove the petitioner's docket from the deferred prosecution file and the court shall enter judgment pursuant to RCW 10.05.020.

Sec.

20.

RCW 10.05.120 and 2019 c 263 s 705 are each amended to read as follows:

(1) Three years after receiving proof of successful completion of the ((two-year)) approved treatment ((program)) plan, and following proof to the court that the petitioner has complied with the conditions imposed by the court following successful completion of the ((two-year)) approved treatment ((program)) plan, but not before five years following entry of the order of deferred prosecution pursuant to a petition brought under RCW 10.05.020(1), the court shall dismiss the charges pending against the petitioner.

(2) When a deferred prosecution is ordered pursuant to a petition brought under RCW 10.05.020(2) and the court has received proof that the petitioner has successfully completed the child welfare service plan, or the plan has been terminated because the alleged victim has reached his or her majority and there are no other minor children in the home, the court shall dismiss the charges pending against the petitioner:

PROVIDED, That in any case where the petitioner's parental rights have been terminated with regard to the alleged victim due to abuse or neglect that occurred during the pendency of the deferred prosecution, the termination shall be per se evidence that the petitioner did not successfully complete the child welfare service plan.

(((3) When a deferred prosecution is ordered for a petition brought under RCW 10.05.020(1) involving a domestic violence behavior problem and the court has received proof that the petitioner has successfully completed the domestic violence treatment plan, the court shall dismiss the charges pending against the petitioner.)) Sec.

21.

RCW 10.05.140 and 2019 c 263 s 706 are each amended to read as follows:

(1) As a condition of granting a deferred prosecution petition for a violation of RCW 46.61.502 or 46.61.504, the court shall order that the petitioner shall not operate a motor vehicle upon the public highways without a valid operator's license and proof of liability p.

46 ESB 5032 insurance.

The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490.

As a condition of granting a deferred prosecution petition on any ((alcohol-dependency)) substance use disorder-based case, the court shall also order the installation of an ignition interlock under RCW 46.20.720.

The required periods of use of the interlock shall be not less than the periods provided for in RCW 46.20.720.

As a condition of granting a deferred prosecution petition, the court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160.

To help ensure continued sobriety and reduce the likelihood of reoffense, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for ((alcoholism or drugs)) substance use disorder, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior.

The court may terminate the deferred prosecution ((program)) upon violation of the deferred prosecution order.

(2) As a condition of granting a deferred prosecution petition for a case involving a domestic violence behavior problem:

(a) The court shall order the petitioner not to possess firearms and order the petitioner to surrender firearms under RCW 9.41.800;

and (b) The court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160.

In addition, to help ensure continued sobriety and reduce the likelihood of reoffense in co- occurring domestic violence and substance ((abuse)) use disorder or mental health disorder cases, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for ((alcoholism or drugs)) substance use disorder, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior.

The court may terminate the deferred prosecution ((program)) upon violation of the deferred prosecution order.

Sec.

22.

RCW 10.05.150 and 2016 sp.s.

c 29 s 527 are each amended to read as follows:

(1) A deferred prosecution ((program)) for ((alcoholism)) either substance use disorder or mental health co-occurring disorder shall p.

47 ESB 5032 be for a two-year period and shall include, but not be limited to, the following requirements:

(((1))) (a) Total abstinence from alcohol and all other nonprescribed mind-altering drugs;

(((2) Participation in an intensive inpatient or intensive outpatient program in a state-approved substance use disorder treatment program;

(3) Participation in a minimum of two meetings per week of an alcoholism self-help recovery support group, as determined by the assessing agency, for the duration of the treatment program;

(4) Participation in an alcoholism self-help recovery support group, as determined by the assessing agency, from the date of court approval of the plan to entry into intensive treatment;

(5) Not less than weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment;

(6) Not less than monthly outpatient contact, group or individual, for the remainder of the two-year deferred prosecution period;

(7) The decision to include the use of prescribed drugs, including disulfiram, as a condition of treatment shall be reserved to the treating facility and the petitioner's physician;

(8))) (b) All treatment within the purview of this section shall occur within or be approved by a state-approved ((substance use disorder treatment program)) behavioral health agency as described in chapter ((70.96A)) 71.24 RCW;

(((9))) (c) Signature of the petitioner agreeing to the terms and conditions of the treatment program;

(d) Periodic, random urinalysis or breath analysis;

(e) If the petitioner fails to remain abstinent, a full substance use disorder reassessment and recommended treatment;

(f) No less than weekly approved outpatient counseling, whether group or individual, for a minimum of six months following the intensive phase of treatment;

(g) No less than monthly outpatient contact, whether group or individual, for the remainder of the two-year deferred prosecution period;

and (h) The decision to include the use of prescribed drugs, including disulfiram, as a condition of treatment shall be reserved to the treating facility and the petitioner's physician.

p.

48 ESB 5032 (2) A deferred prosecution for substance use disorder shall include the following requirements:

(a) Completion of an intensive outpatient treatment program or residential inpatient treatment program, depending on the severity of the diagnosis;

and (b) Participation in a minimum of two meetings per week of a substance use disorder self-help recovery support group, as determined by the assessing agency, for the duration of the treatment program.

(3) A deferred prosecution for mental health co-occurring disorder shall include the following requirements:

(a) Completion of the requirements described in subsection (2) of this section, or completion of an outpatient program as determined by the petitioner's diagnostic evaluation;

and (b) Completion of individual or group mental health services.

Sec.

23.

RCW 10.05.155 and 2019 c 263 s 708 are each amended to read as follows:

A deferred prosecution ((program)) for domestic violence behavior, or domestic violence co-occurring with substance abuse or mental health, must include, but is not limited to, the following requirements:

(1) Completion of a risk assessment;

(2) Participation in the level of treatment recommended by the program as outlined in the current treatment plan;

(3) Compliance with the contract for treatment;

(4) Participation in any ancillary or co-occurring treatments that are determined to be necessary for the successful completion of the domestic violence intervention treatment including, but not limited to, mental health or substance use treatment;

(5) Domestic violence intervention treatment within the purview of this section to be completed with a state-certified domestic violence intervention treatment program;

(6) Signature of the petitioner agreeing to the terms and conditions of the treatment program;

(7) Proof of compliance with any active order to surrender weapons issued in this program or related civil protection orders or no-contact orders.

p.

49 ESB 5032 NEW SECTION.

Sec.

24.

A new section is added to chapter 10.05 RCW to read as follows:

A deferred prosecution for mental health disorder where the wrongful conduct did not involve, and was not caused by, alcohol, drugs, or a substance use disorder, shall include treatment recommended by a state-approved mental health provider.

Sec.

25.

RCW 10.05.170 and 1991 c 247 s 2 are each amended to read as follows:

As a condition of granting deferred prosecution, the court may order supervision of the petitioner during the period of deferral and may levy a monthly assessment upon the petitioner as provided in RCW 10.64.120.

In a jurisdiction with a probation department, the court may appoint the probation department to supervise the petitioner.

In a jurisdiction without a probation department, the court may appoint an appropriate person or agency to supervise the petitioner.

A supervisor appointed under this section shall be required to do at least the following:

(1) If the charge for which deferral is granted relates to operation of a motor vehicle, at least once every ((six)) three months request ((from the department of licensing)) an abstract of the petitioner's driving record;

((and)) (2) At least once every month make contact with the petitioner ((or with any agency to which the petitioner has been directed for treatment as a part of the deferral)) until treatment is completed;

(3) Review the petitioner's criminal history at a minimum of every 90 days until the end of the deferral period;

and (4) Report known violations of supervision or law and noncompliance with conditions of the deferred prosecution to the court within five business days or as soon as practicable.

Sec.

26.

RCW 46.20.355 and 2020 c 330 s 8 are each amended to read as follows:

(1) Upon receipt of an abstract indicating a deferred prosecution has been granted under RCW 10.05.060, or upon receipt of a notice of conviction of RCW 46.61.502 or 46.61.504, the department of licensing shall issue notice that 45 days after receipt, the person must apply for a probationary license, and order the person to surrender any nonprobationary Washington state driver's license that may be in his or her possession.

The department shall revoke the license, permit, p.

50 ESB 5032 or privilege to drive of any person who fails to surrender it as required by this section for one year, unless the license has been previously surrendered to the department, a law enforcement officer, or a court, or the person has completed an affidavit of lost, stolen, destroyed, or previously surrendered license, such revocation to take effect ((thirty)) 30 days after notice is given of the requirement for license surrender.

(2) The department shall place a person's driving privilege in probationary status as required by RCW 10.05.060 or 46.61.5055 for a period of five years from the date the probationary status is required to go into effect.

(3) Following receipt of an abstract indicating a deferred prosecution has been granted under RCW 10.05.060, or upon reinstatement or reissuance of a driver's license suspended or revoked as the result of a conviction of RCW 46.61.502 or 46.61.504, the department shall require the person to obtain a probationary license in order to operate a motor vehicle in the state of Washington, except as otherwise exempt under RCW 46.20.025.

The department shall not issue the probationary license unless the person is otherwise qualified for licensing, and the person must renew the probationary license on the same cycle as the person's regular license would have been renewed until the expiration of the five-year probationary status period imposed under subsection (2) of this section.

(4) If a person is eligible for full credit under RCW 46.61.5055(9)(b)(ii) and, by the date specified in the notice issued under RCW 46.20.245, has completed the requirements under RCW 46.20.311 and paid the fee under subsection (5) of this section, the department shall issue a probationary license on the date specified in the notice with no further action required of the person.

(5) For each original issue or renewal of a probationary license under this section, the department shall charge a fee of ((fifty dollars)) $50 in addition to any other licensing fees required.

Except for when renewing a probationary license, the department shall waive the requirement to obtain an additional probationary license and the ((fifty dollar)) $50 fee if the person has a probationary license in his or her possession at the time a new probationary license is required.

(6) A probationary license shall enable the department and law enforcement personnel to determine that the person is on probationary p.

51 ESB 5032 status.

The fact that a person's driving privilege is in probationary status or that the person has been issued a probationary license shall not be a part of the person's record that is available to insurance companies.

Sec.

27.

RCW 46.20.385 and 2020 c 330 s 9 are each amended to read as follows:

(1)(a) Any person licensed under this chapter or who has a valid driver's license from another state, who is convicted of:

(i) A violation of RCW 46.61.502 or 46.61.504 or an equivalent local or out-of-state statute or ordinance, or (ii) a violation of RCW 46.61.520(1)(a) or an equivalent local or out-of-state statute or ordinance, or (iii) a conviction for a violation of RCW 46.61.520(1) (b) or (c) if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.520(1)(a), or (iv) RCW 46.61.522(1)(b) or an equivalent local or out-of-state statute or ordinance, or (v) RCW 46.61.522(1) (a) or (c) if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.522(1)(b) committed while under the influence of intoxicating liquor or any drug, or (vi) who has had or will have his or her license suspended, revoked, or denied under RCW 46.20.3101, or has had his or her license suspended, revoked, or denied under RCW 46.61.5055(11)(c), or who is otherwise permitted under subsection (8) of this section, may submit to the department an application for an ignition interlock driver's license.

The department, upon receipt of the prescribed fee and upon determining that the petitioner is eligible to receive the license, may issue an ignition interlock driver's license.

(b) A person may apply for an ignition interlock driver's license anytime, including immediately after receiving the notices under RCW 46.20.308 or after his or her license is suspended, revoked, or denied.

(c) An applicant under this subsection shall provide proof to the satisfaction of the department that a functioning ignition interlock device has been installed on all vehicles operated by the person.

(i) The department shall require the person to maintain the device on all vehicles operated by the person and shall restrict the person to operating only vehicles equipped with the device, for the remainder of the period of suspension, revocation, or denial, unless otherwise permitted under RCW 46.20.720(6).

p.

52 ESB 5032 (ii) Subject to any periodic renewal requirements established by the department under this section and subject to any applicable compliance requirements under this chapter or other law, an ignition interlock driver's license granted upon a suspension or revocation under RCW 46.61.5055 or 46.20.3101 extends through the remaining portion of any concurrent or consecutive suspension or revocation that may be imposed as the result of administrative action and criminal conviction arising out of the same incident.

(2) An applicant for an ignition interlock driver's license who qualifies under subsection (1) of this section is eligible to receive a license only if the applicant files satisfactory proof of financial responsibility under chapter 46.29 RCW.

(3) Upon receipt of evidence that a holder of an ignition interlock driver's license granted under this subsection no longer has a functioning ignition interlock device installed on all vehicles operated by the driver, the director shall give written notice by first-class mail to the driver that the ignition interlock driver's license shall be canceled.

If at any time before the cancellation goes into effect the driver submits evidence that a functioning ignition interlock device has been installed on all vehicles operated by the driver, the cancellation shall be stayed.

If the cancellation becomes effective, the driver may obtain, at no additional charge, a new ignition interlock driver's license upon submittal of evidence that a functioning ignition interlock device has been installed on all vehicles operated by the driver.

(4) A person aggrieved by the decision of the department on the application for an ignition interlock driver's license may request a hearing as provided by rule of the department.

(5) The director shall cancel an ignition interlock driver's license after receiving notice that the holder thereof has been convicted of operating a motor vehicle in violation of its restrictions, no longer meets the eligibility requirements, or has been convicted of or found to have committed a separate offense or any other act or omission that under this chapter would warrant suspension or revocation of a regular driver's license.

The department must give notice of the cancellation as provided under RCW 46.20.245.

A person whose ignition interlock driver's license has been canceled under this section may reapply for a new ignition interlock driver's license if he or she is otherwise qualified under this section and pays the fee required under RCW 46.20.380.

p.

53 ESB 5032 (6)(a) Unless costs are waived by the ignition interlock company or the person is indigent under RCW 10.101.010, the applicant shall pay the cost of installing, removing, and leasing the ignition interlock device and shall pay an additional fee of twenty-one dollars per month.

Payments shall be made directly to the ignition interlock company.

The company shall remit the additional fee to the department, except that the company may retain ((twenty-five)) 25 cents per month of the additional fee to cover the expenses associated with administering the fee.

(b) The department shall deposit the proceeds of the twenty-one dollar fee into the ignition interlock device revolving account.

Expenditures from the account may be used only to administer and operate the ignition interlock device revolving account program.

The department shall adopt rules to provide monetary assistance according to greatest need and when funds are available.

(7) The department shall adopt rules to implement ignition interlock licensing.

The department shall consult with the administrative office of the courts, the state patrol, the Washington association of sheriffs and police chiefs, ignition interlock companies, and any other organization or entity the department deems appropriate.

(8)(a) Any person licensed under this chapter who is convicted of a violation of RCW 46.61.500 when the charge was originally filed as a violation of RCW 46.61.502 or 46.61.504, or an equivalent local ordinance, may submit to the department an application for an ignition interlock driver's license under this section.

(b) A person who does not have any driver's license under this chapter, but who would otherwise be eligible under this section to apply for an ignition interlock license, may submit to the department an application for an ignition interlock license.

The department may require the person to take any driver's licensing examination under this chapter and may require the person to also apply and qualify for a temporary restricted driver's license under RCW 46.20.391.

Sec.

28.

RCW 46.20.720 and 2020 c 330 s 10 are each amended to read as follows:

(1) Ignition interlock restriction.

The department shall require that a person may drive only a motor vehicle equipped with a functioning ignition interlock device:

p.

54 ESB 5032 (a) Pretrial release.

Upon receipt of notice from a court that an ignition interlock device restriction has been imposed under RCW 10.21.055;

(b) Ignition interlock driver's license.

As required for issuance of an ignition interlock driver's license under RCW 46.20.385;

(c) Deferred prosecution.

Upon receipt of notice from a court that the person is participating in a deferred prosecution program under RCW 10.05.020 for a violation of:

(i) RCW 46.61.502 or 46.61.504 or an equivalent local ordinance;

or (ii) RCW 46.61.5249 or 46.61.500 or an equivalent local ordinance if the person would be required under RCW 46.61.5249(4) or 46.61.500(3) (a) or (b) to install an ignition interlock device on all vehicles operated by the person in the event of a conviction;

(d) Post conviction.

After any applicable period of mandatory suspension, revocation, or denial of driving privileges, or upon fulfillment of day-for-day credit under RCW 46.61.5055(9)(b)(ii) for a suspension, revocation, or denial of driving privileges:

(i) Due to a conviction of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local or out-of-state statute or ordinance;

or (ii) Due to a conviction of a violation of RCW 46.61.5249 or 46.61.500 or an equivalent local ordinance if the person is required under RCW 46.61.5249(4) or 46.61.500(3) (a) or (b) to install an ignition interlock device on all vehicles operated by the person;

or (e) Court order.

Upon receipt of an order by a court having jurisdiction that a person charged or convicted of any offense involving the use, consumption, or possession of alcohol while operating a motor vehicle may drive only a motor vehicle equipped with a functioning ignition interlock.

The court shall establish a specific alcohol set point at which the ignition interlock will prevent the vehicle from being started.

The court shall also establish the period of time for which ignition interlock use will be required.

(2) Alcohol set point.

Unless otherwise specified by the court for a restriction imposed under subsection (1)(e) of this section, the ignition interlock device shall have an alcohol set point that prevents the motor vehicle from being started when the breath sample provided has an alcohol concentration of 0.020 or more.

(3) Duration of restriction.

A restriction imposed under:

p.

55 ESB 5032 (a) Subsection (1)(a) of this section shall remain in effect until:

(i) The court has authorized the removal of the device under RCW 10.21.055;

or (ii) The department has imposed a restriction under subsection (1)(b), (c), or (d) of this section arising out of the same incident.

(b) Subsection (1)(b) of this section remains in effect during the validity of any ignition interlock driver's license that has been issued to the person.

(c) Subsection (1)(c)(i) or (d)(i) of this section shall be for no less than:

(i) For a person who has not previously been restricted under this subsection, a period of one year;

(ii) For a person who has previously been restricted under (c)(i) of this subsection, a period of five years;

(iii) For a person who has previously been restricted under (c)(ii) of this subsection, a period of ((ten)) 10 years.

The restriction of a person who is convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance and who committed the offense while one or more passengers under the age of ((sixteen)) 16 were in the vehicle shall be extended for an additional period as required by RCW 46.61.5055(6)(a).

For purposes of determining a period of restriction for a person restricted pursuant to a conviction under (d) of this subsection, a restriction based on a deferred prosecution under subsection (1)(c) of this section arising out of the same incident is not considered a prior restriction for purposes of this subsection.

(d) Subsection (1)(c)(ii) or (d)(ii) of this section shall be for a period of no less than six months.

(e) The period of restriction under (c) or (d) of this subsection shall be extended by ((one hundred eighty)) 180 days whenever the department receives notice that the restricted person has been convicted under RCW 46.20.740 or 46.20.750.

If the period of restriction under (c) or (d) of this subsection has been fulfilled and cannot be extended, the department must add a new ((one hundred eighty-day)) 180-day restriction that is imposed from the date of conviction and is subject to the requirements for removal under subsection (4) of this section.

(f) Subsection (1)(e) of this section shall remain in effect for the period of time specified by the court.

p.

56 ESB 5032 (g) The period of restriction under (c) and (d) of this subsection based on incidents occurring on or after June 9, 2016, must be tolled for any period in which the person does not have an ignition interlock device installed on a vehicle owned or operated by the person unless the person receives a determination from the department that the person is unable to operate an ignition interlock device due to a physical disability.

For all drivers restricted under this section with incidents and restriction start dates prior to June 9, 2016, a driver may apply to waive the restriction by applying for a determination from the department that the person is unable to operate an ignition interlock device due to a physical disability.

The department's determination that a person is unable to operate an ignition interlock device must be reasonable and be based upon good and substantial evidence.

This determination is subject to review by a court of competent jurisdiction.

The department may charge a person seeking a medical exemption under this subsection a reasonable fee for the assessment.

(4) Requirements for removal.

A restriction imposed under subsection (1)(c) or (d) of this section shall remain in effect until the department receives a declaration from the person's ignition interlock device vendor, in a form provided or approved by the department, certifying the following:

(a) That there have been none of the following incidents in the ((one hundred eighty)) 180 consecutive days prior to the date of release:

(i) Any attempt to start the vehicle with a breath alcohol concentration of 0.04 or more unless a subsequent test performed within ((ten)) 10 minutes registers a breath alcohol concentration lower than 0.04 and the digital image confirms the same person provided both samples;

(ii) Failure to take any random test unless a review of the digital image confirms that the vehicle was not occupied by the driver at the time of the missed test;

(iii) Failure to pass any random retest with a breath alcohol concentration of lower than 0.020 unless a subsequent test performed within ((ten)) 10 minutes registers a breath alcohol concentration lower than 0.020, and the digital image confirms the same person provided both samples;

p.

57 ESB 5032 (iv) Failure of the person to appear at the ignition interlock device vendor when required for maintenance, repair, calibration, monitoring, inspection, or replacement of the device;

or (v) Removal of the ignition interlock device by a person other than an ignition interlock technician certified by the Washington state patrol;

and (b) That the ignition interlock device was inspected at the conclusion of the ((one hundred eighty-day)) 180-day period by an ignition interlock technician certified by the Washington state patrol and no evidence was found that the device was tampered with in the manner described in RCW 46.20.750.

(5) Day-for-day credit.

(a) The time period during which a person has an ignition interlock device installed in order to meet the requirements of subsection (1)(b) of this section shall apply on a day-for-day basis toward satisfying the period of time the ignition interlock device restriction is imposed under subsection (1)(c) or (d) of this section arising out of the same incident.

(b) The department must also give the person a day-for-day credit for any time period, beginning from the date of the incident, during which the person kept an ignition interlock device installed on all vehicles the person operates, other than those subject to the employer exemption under subsection (6) of this section.

(c) If the day-for-day credit granted under this subsection equals or exceeds the period of time the ignition interlock device restriction is imposed under subsection (1)(c) or (d) of this section arising out of the same incident, and the person has already met the requirements for removal of the device under subsection (4) of this section, the department may waive the requirement that a device be installed or that the person again meet the requirements for removal.

(6) Employer exemption.

(a) Except as provided in (b) of this subsection, the installation of an ignition interlock device is not necessary on vehicles owned, leased, or rented by a person's employer and on those vehicles whose care and/or maintenance is the temporary responsibility of the employer, and driven at the direction of a person's employer as a requirement of employment during working hours.

The person must provide the department with a declaration pursuant to chapter 5.50 RCW from his or her employer stating that the person's employment requires the person to operate a vehicle owned by the employer or other persons during working hours.

When the department receives a declaration under this subsection, it shall p.

58 ESB 5032 attach or imprint a notation on the person's driving record stating that the employer exemption applies.

(b) The employer exemption does not apply when the employer's vehicle is assigned exclusively to the restricted driver and used solely for commuting to and from employment.

(c) The employer exemption does not apply to a person who is self-employed unless the person's vehicle is used exclusively for the person's employment.

(7) Ignition interlock device revolving account.

In addition to any other costs associated with the use of an ignition interlock device imposed on the person restricted under this section, the person shall pay an additional fee of ((twenty-one dollars)) $21 per month.

Payments must be made directly to the ignition interlock company.

The company shall remit the additional fee to the department to be deposited into the ignition interlock device revolving account, except that the company may retain ((twenty-five)) 25 cents per month of the additional fee to cover the expenses associated with administering the fee.

The department may waive the monthly fee if the person is indigent under RCW 10.101.010.

(8) Foreign jurisdiction.

For a person restricted under this section who is residing outside of the state of Washington, the department may accept verification of installation of an ignition interlock device by an ignition interlock company authorized to do business in the jurisdiction in which the person resides, provided the device meets any applicable requirements of that jurisdiction.

The department may waive one or more requirements for removal under subsection (4) of this section if compliance with the requirement or requirements would be impractical in the case of a person residing in another jurisdiction, provided the person is in compliance with any equivalent requirement of that jurisdiction.

The department may waive the monthly fee required by subsection (7) of this section if collection of the fee would be impractical in the case of a person residing in another jurisdiction.

Sec.

29.

RCW 46.20.740 and 2020 c 330 s 11 are each amended to read as follows:

(1) The department shall attach or imprint a notation on the driving record of any person restricted under RCW 46.20.720, 46.61.5055, or 10.05.140 stating that the person may operate only a motor vehicle equipped with a functioning ignition interlock device.

p.

59 ESB 5032 The department shall determine the person's eligibility for licensing based upon written verification by a company doing business in the state that it has installed the required device on a vehicle owned or operated by the person seeking reinstatement.

If, based upon notification from the interlock provider or otherwise, the department determines that an ignition interlock required under this section is no longer installed or functioning as required, the department shall suspend the person's license or privilege to drive.

Whenever the license or driving privilege of any person is suspended or revoked as a result of noncompliance with an ignition interlock requirement, the suspension shall remain in effect until the person provides notice issued by a company doing business in the state that a vehicle owned or operated by the person is equipped with a functioning ignition interlock device.

(2) It is a gross misdemeanor for a person with such a notation on his or her driving record to operate a motor vehicle that is not so equipped, unless the notation resulted from a restriction imposed as a condition of release and the restriction has been released by the court prior to driving.

Any time a person is convicted under this section, the court shall immediately notify the department for purposes of RCW 46.20.720(3)(e).

It is an affirmative defense, which the defendant must prove by a preponderance of the evidence, that the employer exemption in RCW 46.20.720(6) applies.

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.

(3) Any sentence imposed for a violation of subsection (2) of this section shall be served consecutively with any sentence imposed under RCW 46.20.750, 46.61.502, 46.61.504, or 46.61.5055.

Sec.

30.

or (b)p. 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;

60 ESB 5032 (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;

p.(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 or more within two hours after driving.

38 SB 5032 (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 or more within two hours after driving.

(b)p. 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.

61 ESB 5032 (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.

p.(a) The person has three or more prior offenses within ((ten)) 15 years as defined in RCW 46.61.5055;

39 SB 5032 (a) The person has three or more prior offenses within ((ten)) 15 years as defined in RCW 46.61.5055;

12.31.

The court may consider the offender's pretrial 24/7 sobrietyp. program monitoring as fulfilling a portion of posttrial sentencing.

62 ESB 5032 sobriety program monitoring as fulfilling a portion of posttrial sentencing.

((Three hundred p.fifty dollars)) $350 of the fine may not be suspended unless the court finds the offender to be indigent;

40 SB 5032 fifty dollars)) $350 of the fine may not be suspended unless the court finds the offender to be indigent;

In lieu of the mandatory minimum term of imprisonment required under this subsection (1)(b)(i), the court, in its discretion, may order not less than ((thirty)) 30 days of electronic home monitoring or a ((one hundred twenty))twenty 120day)) day120-day period of 24/7 sobriety program monitoring.

((Five hundred dollars)) $5,000$500 of the fine may not be suspended unless the court finds the offender to be indigent.

Except as provided in RCW 46.61.502(6) or 46.61.504(6), a person who is convicted of a violationp. of RCW 46.61.502 or 46.61.504 and who has one prior offense within seven years shall be punished as follows:

63 ESB 5032 violation of RCW 46.61.502 or 46.61.504 and who has one prior offense within seven years shall be punished as follows:

Thirty days of imprisonment and ((sixty)) 60 days of electronic home monitoring may not be suspended or p.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.

41 SB 5032 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.

or (b)p. Penalty for alcohol concentration at least 0.15.

64 ESB 5032 (b) Penalty for alcohol concentration at least 0.15.

If the offender shows p.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 minimum term of imprisonment and electronic home monitoring under this subsection (2)(b)(i), the court may order a minimum of either six months 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.

42 SB 5032 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 minimum term of imprisonment and electronic home monitoring under this subsection (2)(b)(i), the court may order a minimum of either six months 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.

Except as provided in RCW 46.61.502(6) or 46.61.504(6), a person who is convicted of a violationp. of RCW 46.61.502 or 46.61.504 and who has two prior offenses within seven years shall be punished as follows: