DRE CONFERENCE – LEGAL UPDATE Amy Freedheim, Senior Deputy Prosecuting Attorney, King County Prosecutor’s Office

OVERVIEW  2011 Legislative Update  Keeping Yourself Up to Date

Mandatory Tow 2011 LEGISLATIVE UPDATE

Mandatory Impound Hailey’s Law Effective Date: July 22, 2011 Mandates a Twelve-hour Impound Hold on Motor Vehicles Used by Persons Arrested for DUI or Physical Control

Mandatory tow required when a driver of a non-commercial or non-farm transport vehicle is arrested for DUI or physical control. If arrested driver is also RO, vehicle may not be redeemed for 12 hours. If there is a different RO or co-owner, vehicle may be redeemed AT TOW YARD as soon as it arrives. If vehicle is commercial vehicle or farm transport vehicle, may be released at scene IF OWNER WAS NOT IN THE VEHICLE WHEN IT WAS STOPPED Hailey’s Law Highlights

The officer does not have to wait for the tow truck if: 1.more than 30 minutes have elapsed since the officer requested the tow truck requested and the truck has not arrived; or 2.the police officer is presented with exigent circumstances such as being called to another incident or due to limited available resources being required to return to patrol In these cases, the officer may place the completed impound order inside the car, and lock the doors and close the windows. The statute imposes certain notice obligations on the officer and contains immunity from liability.

Felony DUI Law Update Any current DUI or physical control offense of someone who has previously been convicted of a prior felony DUI or felony physical control, is a felony. RCW and 2008 c 282 s 20 No more “clean slate” or wash out period.

Ignition Interlock  If a case originally charged with DUI and reduced to Reckless Driving or Negligent, offender will now be required to install an ignition interlock for 6 months if they have one or more prior offenses (DUI/Physical Control/DUI reduced to Neg 1 or Reckless)  Veh Hom/Veh Assault under DUI prong also requires 6 month Ignition Interlock requirement. RCW , RCW

Deferred Prosecution for DUI/Physical Control will now require an Ignition Interlock (fixed a loophole from the last law change that inadvertently removed the DP IID requirement). A DUI or physical control violator who is ordered by the court to refrain from consuming alcohol and who claims they will not operate a motor vehicle or who is ineligible for an ignition interlock license shall be ordered to submit to alcohol monitoring for the period of the mandatory license suspension or revocation.

Prior Offenses and Enhancements – Vehicular Homicide and Vehicular Assault  Vehicular Homicide and Vehicular Assault originally filed under DUI prong but sentenced under reckless manner (“RM”) or disregard for the safety of others (“DSO”), will be counted as prior convictions for purposes of DUI sentencing.  Used to just be Veh Hom/Veh Assault under DUI prong  Prevents defendants from getting reduction to DSO or RM just to avoid the DUI sentencing requirements and treatment as a prior offense.  Enhanced Sentencing:  Veh Hom committed while DUI has 2 year mandatory enhancement for prior DUI offenses. Mandatory Served in total confinement Served consecutively to all other sentencing This makes it consistent with other felony SRA sentencing enhancements

Motorcycle Profiling  Prohibits using the fact that a person rides a motorcycle or wears motorcycle-related paraphernalia as a factor in deciding to stop and question, take enforcement action, arrest or search a person or vehicle with or without a legal basis under the US or WA Constitutions.  Requires the CJTC to address issues related to motorcycle profiling in basic law enforcement training and during in-service law enforcement officers trainings regarding profiling.  Requires local law enforcement agencies to add a statement condemning motorcycle profiling to existing policies regarding profiling.

Negligent Driving 2 nd / Vulnerable User  New “Super” Infraction: Negligent Driving in the 2 nd Degree, vulnerable user victim.  Requires a violation of RCW in a manner that is:  Negligent AND  Endangers or is likely to endanger any person or property, AND  Is the proximate cause of death, great bodily harm, or substantial bodily harm of a vulnerable user of a public way.  Vulnerable User = pedestrian, bicyclist, motor cyclist, person on animal (e.g. horse rider).  Penalty:  Maximum fine $5,000, and $1,000 of that is mandatory.  License suspension triggered.  The fine is $5,000, which may not be reduced to less than $1,000.  There is an alternative sanction of a fine, traffic school, and extensive community service.

CPS Notification after DUI Officer required to promptly notify CPS whenever a child is present in a vehicle being driven by his or her parent, guardian, or legal custodian, and that person is being arrested for a drug or alcohol- related driving offense.  See, RCW  LE not required to take custody of the child as long as a responsible adult or authorized agency is available to take custody of the child.  Applies to any person under age thirteen

Division 3 Pretext Stop Case Vehicle Searches Show of Force BAD NEWS

Pretext Stops  Pretext Stops. A patrol officer’s stop of a vehicle for an illegally modified muffler was an unconstitutional pretext stop, as the patrol officer only made the stop after following the defendant’s car for 1/2 mile. The patrol officer followed the defendant’s car because the car fit the description of a car reportedly driven by a suspected drunk driver. The defendant’s felony DUI conviction is reversed and charges are dismissed with prejudice. State v. Arreola, COA No III (Sep. 15, 2011). Judge Brown dissented. State v. Arreoladissented

Vehicle Searches - Careful  Vehicle Search. An officer’s observations of pills in the defendant’s vehicle was not a search, but the observations did not provide a basis for the warrantless entry into the vehicle to collect the pills. State v. Jones, COA No II (Aug. 30, 2011). State v. Jones  Take Photos – do we really need the pill bottles themselves?

Display of Authority - Seizure  Seizures. The officer seized a van by pulling behind the van, which was stopped in front of a driveway, and activating the patrol car’s emergency lights. The activation of a patrol car's emergency lights constitutes a display of authority. State v. Gantt, COA No III (Aug. 16, 2011). Judge Korsmo dissented.State v. Ganttdissented  Officers will need to be specific about which combination of lights were used.

Questions? Traffic Safety Resource Prosecutors Courtney Popp & Moses Garcia WSP – Impaired Driving Section