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(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. |
