Ord 94-213
ORDINANCB NO.
94-213
AN ORDlNANCB OF THE CITY COUNCIL OF THB CITY
OP FEDERAL WAY, WASHINGTON ENACTING PENALTIES
FOR DRIVING WHILB UNDER THE INFLUENCB AND
PHYSICAL CONTROL WHILE UNDER THE INFLUENCE AND
IMPOSING FEES IN THE EVENT OF CONVICTION FOR
DRIVING WHILE UNDER THE INFLUENCE, PHYSICAL
CONTROL WHILB UNDER THB INFLUENCE, SENTENCING
UNDER A LESSER CHARGB, OR THE GRANTING OF A
DEFERRED PROSECUTION AND SETTING REQUrREMENTS
FOR ASSESSMENT AND TREATMENT FOLLOWING A
CONVICTION FOR DRIVrNG WHrLB UNDER THE
INFLUENCE OR PHYSICAL CONTROL WHILE UNDER THE
INFLUENCE. (ADDING FEDERAL WAY CODE SECTIONS
15-35,15-36,15-37,15-38, AND 15-39)
WHEREAS the state legislature had mandated new penalties for
a conviction of Driving While Under the Influence of Intoxicating
Liquor or Drugs and for Being in Actual Physical Control of a Motor
Vehicle While Under the Influence of Intoxicating Liquor or Drugs;
and,
WHEREAS the City of Federal Way must provide for penalties for
violations of the above laws which are consistent with state law;
NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES
HEREBY ORDAIN AS FOLLOWS:
Section 1.
Penal tV: DWI: BAC Less Than. l5 . A new Section
15-35 is added to Federal Way City Code to read as follows:
(1) A person whose driver's license is not in a probationary,
suspended, or revoked status, and who has not been convicted of a
violation of Federal Way City Code Section 15-31 or 15-32 or any
other
criminal
prohibition
against
Driving
While
Under
the
Influence or Being in Actual Physical Control of a Motor Vehicle
ORD # 94-213
, PAGE 1
COpy
While Under the Influence that was committed within five years
before the commission of the current violation, and who violates
Federal Way City Code section 15-31 (1) or Federal Way City Code
15-32 (a)(l) because of an alcohol concentration of at least o.os
but less that 0.15, or a person who violates Federal Way City Code
section 15-31
(a) (2)
or
(a) (3)
or Federal Way City Code 15-32
(a) (2) or (a) (3) and for any reason other than the person's refusal
to take a test offered pursuant to RCW 46.20.30S the person's
alcohol
concentration
is
not
proved,
is
guilty
of
a
gross
misdemeanor and shall be punished as follows:
(a)
By imprisonment for not less than one day nor more than
one year.
Twenty-four consecutive hours of the imprisonment may
not be suspended or deferred 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.
Whenever the mandatory minimum sentence is suspended or deferred,
the court shall state in writing the reason for granting the
suspension or deferral and the facts upon which the suspension or
deferral is based; and
(b) Bya fine of not less that three hundred fifty dollars nor
more than five thousand dollars.
Three hundred fifty dollars of
the fine may not be suspended or deferred unless the court finds
the offender to be indigent; and
(c)
By suspension of the offender's license or permit to
drive, or suspension of any nonresident privilege to drive, for a
period of ninety days.
Allor part of the ninety-day period of
ORD #
94-213
, PAGE 2
suspension may be suspended upon a plea agreement executed by the
defendant and the prosecutor, pursuant to Washington Law of 1994
Chapter 275, Section 4.
The court shall notify the Washington
state Department of Licensing of the conviction and of any period
of suspension and shall notify the Washington State Department of
Licensing of the person's completion of any period of suspension.
The Washington state Department of Licensing is directed by state
Law that, upon receiving notification of the conviction, or if
applicable, upon receiving notification of the completion of any
period of suspension, that the department shall issue the offender
a probationary license in accordance with Washington Law of 1994,
Chapter 275, section 8.
(2)
A
person
whose's
driver's
license
is
not
in
a
probationary, suspended, or revoked status, and who has not been
convicted of a violation of Federal Way City Code, section 15-31 or
Federal Way City Code,
section
15-32,
or
any other criminal
prohibition against Driving While Under the Influence or Being in
Actual
Physical
Control
of
a
Motor
vehicle
While
Under
the
Influence
that
was
committed
within
five
years
before
the
commission of the current violation, and who either:
(a) violates Federal Way City code, section 15-31 (a) (1) or
Federal Way City Code, section 15-32 (a)(l) because of an alcohol
concentration of 0.15 or more; or
(b) violates Federal Way city Code, section 15-31 (a) (2) or
(a)(3), or Federal Way City Code, section 15-32 (a) (2) or (a)(3)
and,
because of the person's refusal to take a test offered
ORD #
94-213
, PAGE 3
pursuant to RCW 46.20.308, there is no test result indicating the
person's alcohol concentration, is guilty of a gross misdemeanor
and shall be punished as follows:
(i) By imprisonment for not less that two days nor more that
one year.
Forty-eight consecutive hours of the imprisonment may
not be suspended or deferred unless the court finds that the
imposi tion of this mandatory minimum sentence would
impose a
substantial risk to the offender's physical or mental well-being.
Whenever the mandatory minimum sentence is suspended or deferred,
the court shall state in writing the reason of granting the
suspension or deferral and the facts upon which the suspension or
deferral is based; and
(ii) Bya fine of not less that five hundred dollars nor more
than five thousand dollars.
Five hundred dollars of the fine may
not be suspended or deferred unless the court finds the offender to
be indigent; and
(Hi)
By suspension by the Washington state Department of
Licensing
of
the
offender's
license
or
permit
to
drive,
or
suspension of any nonresident privilege to drive, for a period of
one hundred twenty days.
The.court shall notify the Washington
state Department of Licensing of the conviction, and upon receiving
notification of the conviction the Washington state Department is
directed by state law to suspend the offender's license and to
issue the offender a probationary license
in accordance with
Washington Law of 1994, Chapter 275, section 8.
ORD #
94-213
, PAGE 4
(3)
In exercising its discretion in setting penalties within
the limits allowed by this section, the court shall particularly
consider whether the persons driving act the time of the offense
was responsible for injury or damage to another or another's
property.
(4)
Upon
conviction
under
this
section,
the
offender's
driver's license is deemed to be in a probationary status for five
years from the date of the issuance of a probationary license under
Washington
Law
of
1994,
Chapter
275,
section
8.
Being
on
probationary status does not authorize a person to drive during any
period
of
license
suspension
imposed
as
a
penalty
for
the
infraction.
(5) An offender punishable under this section is subject to
the alcohol assessment and treatment provisions of Section 15-39 of
this Code.
(6) (a)
In addition to any nonsuspendable and nondeferrable
jail sentence required by this section, whenever the court imposes
less that one year in jail, the court shall also suspend but shall
not defer a period of confinement for a period not exceeding two
years.
The
court
shall
impose
conditions
of probation that
include: (i) Not driving a motor vehicle within this state without
a valid license to drive and proof of financial responsibility for
the future;
(ii) not driving a motor vehicle within this state
while having a alcohol concentration of 0.08 or more within two
hours after driving; and (iii) not refusing to submit to a test of
his or her breath or blood to determine alcohol concentration upon
ORD #
94-213
, PAGE 5
request of a law enforcement officer who has reasonable grounds to
believe the person was driving or was in actual physical control of
a motor vehicle within this state while under the influence of
intoxicating liquor.
The court may impose conditions of probation
that include nonrepetition, alcohol or drug treatment, supervised
probation,
or other conditions that may be appropriate.
The
sentence may be imposed in whole or part upon violation of a
condition of probation during the suspension period.
(b) For each violation of mandatory conditions of probation
under (a) (i) and (ii) or (a) (i) and (iii) of this subsection, the
court shall order the convicted person to be confined for thirty
days, which shall not be suspended or deferred.
(c) For each incident involving a violation of a mandatory
condition of probation imposed under this subsection, the license,
permit, or privilege to drive of the person shall be suspended by
the court for thirty days or, if such l~cense, permit, or privilege
to drive already is suspended, revoked or denied at the time the
finding of probation violation is made, the suspension, revocation,
or denial then in effect shall be extended by thirty days.
The
court shall notify the Washington state Department of Licensing of
any
suspension,
revocation,
or denial
or
any extension of
a
suspension, revocation, or denial imposed under this subsection.
section 2.
BAC Less Than .15 While on Probationarv License
status.
A new section 15-36 is added to Federal Way City Code, to
read as follows:
ORD #
94-213
, PAGE 6
(1)
A person whose driver's license is in a probationary
status and who violates Federal Way City Code,
Section 15-31
(a)(l), or Federal Way city Code, Section 15-32 (a)(l) because of
an alcohol concentration of at least 0.08 but less that 0.15 is
guilty of a gross mi$demeanor and shall be punished as follows:
(a) By imprisonment for not less than seven days nor more than
one year.
Seven consecutive days of the imprisonment may not be
suspended or deferred unless the court finds that the imposition of
this mandatory minimum sentence would pose a substantial risk to
the
offender's
physical
or mental
well-being.
Whenever
the
mandatory minimum sentence is suspended or deferred, the court
shall state in writing the reason for granting the suspension or
deferral and the facts upon which the suspension or deferral is
based; and
(b) Bya fine of not less that five hundred dollars nor more
that five thousand dollars.
Five hundred dollars of the fine may
not be suspended or deferred unless the court finds the offender to
be indigent; and
(c)
By suspension of the offender's license or permit to
drive, or suspension of any nonresident privilege to drive, for a
period of one year.
The court shall notify the Washington State
Department of Licensing of the conviction,
and upon receiving
notification
the Washington
State
Department
of
Licensing
is
directed by state law to suspend the offender's license and to
issue the offender a probationary
license
in accordance with
Washington Law of 1994, Chapter 275, section 8.
ORD #
94-213
, PAGE 7
(2)
A person whose driver's license is in a probationary
status and who either:
(a) violates Federal Way City Code, Section 15-31 (a)(l) or
Federal
Way
City
Code
15-32
(a) (1)
because
of
an
alcohol
concentration of 0.15 or more, or
(b) violates Federal Way City Code, section 15-31 (a) (2) or
(a)(3), or Federal Way City Code, section 15-32 (a) (2) or (a)(3)
and,
because of the person's refusal to take a test offered
pursuant to RCW 46.20.308, there is no test result indicating the
person's. alcohol concentration, is guilty of a gross misdemeanor
and shall be punished as follows:
( i)
By imprisonment for not less than ten days nor more than
one year.
Ten consecutive days or the imprisonment may not be
suspended or deferred unless the court finds that the imposition of
this mandatory minimum sentence would pose a substantial risk to
the
offender's
physical
or mental
well-being.
Whenever
the
mandatory minimum sentence is suspended or deferred, the court
shall state in writing the reason for granting the suspension or
deferral and the facts upon which the
suspension or deferral is
based; and
(ii) By a fine of not less than seven hundred fifty dollars
nor more than five thousand dollars.
Seven hundred fifty dollars
of the fine may not be suspended or deferred unless the court finds
the offender to be indigent; and
(Hi)
By revocation of the offender's license or permit to
drive or of any nonresident privilege to drive, for a period of
ORD #
94-213
, PAGE 8
four hundred fifty days.
The court shall notify the Washington
state Department of Licensing of the conviction, and upon receiving
notification of the conviction the Washington state Department of
Licensing
is
directed by state
law to revoke the
offender's
license,
and upon determining that the offender
is
otherwise
qualified in accordance with RCW 46.20.311, the Washington state
Department of Licensing shall issue the offender a probationary
license in accordance with Washington Law of 1994, Chapter 275,
section 8.
(3) In exercising its discretion in setting penalties within
the limits allowed by this section, the court shall particularly
consider whether the person's driving at the time of the offense
was responsible for injury or damage to another or ano.ther's
property.
(4)
An offender punishable under this section is subject to
the alcohol assessment and treatment provisions of Section 15-39 of
this Code.
An offender punishable under subsection (1) or (2) of
this section is subject to the vehicle seizure and forfeiture
provisions of RCW 46.61.511.
No offender punishable under this
section
is
eligible
for
an
occupational
license
under
RCW
46.20.391.
(5) (a)
In addition to any nonsuspendable and nondeferrable
jail sentence required by this section, whenever the court imposes
less than one year in jail, the court shall also suspend but shall
not defer a period of confinement for a period not exceeding two
years.
The
court
shall
impose
conditions
of probation that
ORD #
94-213
, PAGE 9
include:
(i) Not driving a motor vehicle within this state without
a valid license to drive and proof of financial responsibility for
the future;
(ii) not driving a motor vehicle within this state
whole having an alcohol concentration of o.os or more within two
hours after driving; and (iii) not refusing to submit to a test of
his or her breath or blood to determine alcohol concentration upon
request of a law enforcement officer who has reasonable grounds to
believe the persons was driving or was in actual physical control
of a motor vehicle within this state while under the influence of
intoxicating liquor.
The court may impose conditions of probation
that include nonrepetition, alcohol or drug treatment, supervised
probation,
or other conditions that may be appropriate.
The
sentence may be imposed in whole or in part upon violation of a
condition of probation curing the suspension period.
(b)
For each violation of mandatory conditions of probation
under (a) (i) and (ii) or (a) (i) and (a) (iii) of this subsection,
the court shall order the convicted person to be confined for
thirty days, which shall not be suspended or deferred.
(c)
For each incident involving. a violation of a mandatory
condition of probation imposed under this subsection, the license,
permit, or privilege to drive of the person shall be suspended by
the court for thirty days or, if such license, permit, or privilege
to drive already is suspended, revoked, or denied at the time the
finding of probation violation is made, the suspension, revocation,
or denial then in effect shall be extended by thirty days.
The
court shall notify the Washington state Department of Licensing of
ORD #
94-213
, PAGE 10
any
suspension,
revocation,
or denial
or
any
extension
of
a
suspension, revocation, or denial imposed under this subsection.
Section 3.
Penalty: Second Offense/Suspended License.
A new
section 15-37
is added to Federal Way City Code,
to read as
follows:
(1) A person who violates Federal Way City Code, section 15-31
or Federal Way City Code 15-32 and who either has a driver's
license in a suspended or revoked states or who has been convicted
under section 2 of this act or any other crimina.l prohibition
against Driving While Under the Influence or Actual
Physical
Control of a Motor Vehicle While Under the Influence that was
committed within five years before the commission of the current
violation, is guilty of a gross misdemeanor and shall be punished
as follows:
(a)
By imprisonment for not less than ninety days nor more
than one year.
Ninety consecutive days of the imprisonment may not
be suspended or deferred unless the court finds that the imposition
of this mandatory minimum sentence would pose a substantial risk to
the
offender's
physical
or mental
well-being.
Whenever
the
mandatory minimum sentence is suspended or deferred,
the court
shall state in writing the reason for granting the suspension or
deferral and the facts upon which the suspension or deferral is
based; and
(b) Bya fine of not less than seven hundred fifty dollars nor
more than five thousand dollars.
Seven hundred fifty dollars of
ORD #
94-213
, PAGE 11
the fine may not be suspended or deferred unless the court finds
the offender to be indigent; and
(c)
By revocation by the Washington state Department of
Licensing of the offender's license or permit to drive or of any
nonresident privilege to drive, for a period to two years.
The
court shall notify the Washington state Department of Licensing of
the conviction, and upon receiving notification of the conviction
the Washington state Department of Licensing is directed by state
law to revoke the offender's license.
Following the revocation and
upon determining that the offender
is otherwise qualified
in
accordance with RCW 46.20.311,
the Washington state Department
shall issue the offender a probationary license in accordance with
Washington Law of 1994, Chapter 275, section 8.
(2)
In exercising its discretion in setting penalties within
the limits allowed by this section, the court shall particularly
consider whether the persons driving at the time of the offense was
responsible for injury or damage to another or another's property.
(3)
An offender punishable under this section is subject to
the alcohol assessment and treatment provisions of section 15-39 of
this Code.
An offender punishable under this section is subject to
the vehicle seizure and forfeiture provisions of RCW 46.61.511.
No
offender
punishable
under
this
section
is
eligible
for
an
occupation license under RCW 46.20.391.
(4) (a)
In addition to any nonsuspendable and nondeferrable
jail sentence required by this section, whenever the court imposes
less than one year in jail, the court shall also suspend but shall
ORD #
94-213
, PAGE 12
not defer a period of confinement for a period not exceeding two
years.
The court
shall
impose conditions
of
probation that
include:
(i) Not driving a motor vehicle within this state without
a valid license to drive and proof of financial responsibility for
the future;
(ii) not driving a motor vehicle within this state
while having an alcohol concentration of o.os or more within two
hours of driving; and (iii) not refusing to submit to a test of his
or her breath or blood to determine alcohol concentration upon
request of a law enforcement officer who has reasonable grounds to
believe that person was driving or was in actual physical control
of a motor vehicle within this state while under the influence of
intoxicating liquor.
The court may impose conditions of probation
that include nonrepetition, alcohol or drug treatment, supervised
probation,
or other conditions
that my be
appropriate.
The
sentence may be imposed in whole or part upon violation of a
condition of probation during the suspension period.
(b)
For each violation of mandatory conditions of probation
under (a) (i) and (ii) or (a) (i) and (iii) of this subsection, the
court shall order the convicted person to be confined for thirty
days, which shall not be suspended or deferred.
(c)
For each incident involving a violation of a mandatory
condition of probation imposed under this subsection, the license,
permit, or privilege to drive of the person shall be suspended by
the court for thirty days or, if such license, permit, or privilege
to drive already is suspended, revoked, or denied at the time of
finding of probation violation is made, the suspension, revocation,
ORD #
94-213
, PAGE 13
or denial then in effect shall be extended by thirty days.
The
court shall notify the department of any suspension, revocation, or
denial or any extension of a suspension, revocation,
or denial
imposed under this subsection.
Section 4.
Assessment Fee.
A new Section 15-38 is added to
Federal Way City Code, to read as follows:
(1) (a) In addition to penalties set forth in this act, a one
hundred twenty-five dollar fee shall be assessed to a person who is
either convicted, sentenced toa lesser change, or given deferred
prosection, as a result of an arrest for violating Federal Way city
Code, section 15-31 or Federal Way city Code 15-32.
This fee is
for
the
purpose
of
funding
the
Washington
state
toxicology
laboratory and the Washington state patrol breath test program.
(b)
Upon a verified petition by the person assessed the fee,
the court may suspend payment of all or part of the fee if it finds
that the person does not have the ability to pay.
(c)
When a minor has been adjudicated a juvenile offender for
an offense which,
if committed by an adult, would constitute a
violation of Federal Way City Code 15-31 or Federal Way city Code
15-32, the court shall assess the one hundred twenty-five dollar
fee under (a) of this subsection.
Upon a verified petition by a
minor assessed the fee, the court may suspend payment of all or
part of the fee if it finds that the minor does not have the
ability to pay the fee.
ORD #
94-213
, PAGE 14
(2)
The fee assessed under subsection (1) of this section
shall be collected by the court of the court and distributed as
follows:
(a) Forty percent shall be subject to distribution under RCW
3.46.120, 3.50.100, 35.20.220, 3.62.020, 3.62.040, or 10.82.070.
(b)
If the case involves a blood test by the state toxicology
laboratory, the remainder of the fee shall be forwarded to the
state treasurer for deposit in the death investigations account to
be used solely for funding the state toxicology laboratory blood
testing program.
(c) Otherwise, the remainder of the fee shall be forwarded to
the state treasurer for deposit in the state patrol highway account
to be used solely for funding the Washington state patrol breath
test program.
section 5.
Treatment.
A new section 15-39 is added to
Federal Way City Code, to read as follows:
(1)
A person subject to alcohol assessment and treatment
under this act shall be required by the court to complete a course
in an alcohol information school approved by the Washington state
Department of Social and Health Services or to complete more
intensive treatment in a program approved by the Washington state
Department of Social and Health Services,
as determined by the
court.
The court shall notify the Washington state Department of
Licensing whenever it orders a person to complete a course or
treatment program under this section.
ORD #
94-213
, PAGE 15
(2)
A diagnostic evaluation and treatment recommendation
shall be prepared under the direction of the court by an alcoholism
agency approved by the Washington state Department of Social and
Health Services or a qualified probation department approved by the
Washington state Department of Social and Health Services.
A copy
of the report shall be forwarded to the Washington state Department
of Licensing.
Based on the diagnostic evaluation, the court shall
determine whether the person shall be required to complete a course
in an alcohol information school approved by the Washington State
Department
of
social
and
Health
services
or
more
intensive
treatment in a program approved by the Washington state Department
of Social and Health services.
(3)
standards for approval for alcohol treatment programs
shall be prescribed the Washington state Department of Social and
Health Services.
The Washington state Department of Social and
Health services shall periodically review the costs of alcohol
information schools and treatment programs.
(4)
Any agency that provides treatment ordered under Laws
1994, Chapter 275 section 4, 5 or 6, shall immediately report to
the appropriate probation department where applicable, otherwise to
the court, and to the Washington state Department of Licensing any
noncompliance by a person with the conditions of his or her ordered
treatment.
The court shall notify the Washington state Department
of Licensing and the Washington state Department of Social and
Health
services
or
any
failure
by
an
agency
to
so
report
noncompliance.
Any agency with knowledge of noncompliance that
ORD #
94-213
, PAGE 16
fails to so report shall be fined two hundred fifty dollars by the
Washington state Department of Social and Health Services.
Upon
three such failures by an agency within one year, the Washington
state Department of Social and Health Services shall revoke the
agency's approval under this section.
(5)
The Washington state Department of Licensing and the
Washington State Department of Social and Health Services may adopt
such rules as are necessary to carry out this section.
section 6.
Severabilitv.
The provisions of this ordinance
are declared separate and severable.
In the event that a court
should declare invalid the second sentence of section 1(1) (c) (FWCC
Section 15-35(1) (C» of this ordinance or the second sentence of
Washington Law of 1994, Chapter 275, section (4)(l)(c), then the
second sentence of section 1(1) (c) or that portion of it, shall be
deemed severed and without effect consistent with the ruling of the
Court, and the remainder of the ordinance shall continue in effect.
The invalidity of any clause, sentence, paragraph, subdivision,
section, or portion of this ordinance or the invalidity of the
application thereof to any person or circumstance, shall not affect
the validity of the remainder of the ordinance, or the validity of
its application to other persons or circumstances.
section 7.
Ratification.
Any
act
consistent
with
the
authority and prior to the effective date of this ordinance is
hereby ratified and affirmed.
section 8.
Effective Date/Emeraencv Passaqe.
The City
finds that it is in the interest of the city's health, safety and
ORD #
94-213
, PAGE 17
welfare to ensure uninterrupted enforcement of the city's Code.
Therefore in order that these required new sections be lawfully
adopted prior to deadline date of July 1, 1994, the City Council
declares and authorizes emergency adoption of this ordinance.
This
ordinance shall take effect from and after July 1, 1994, or thirty
(30) days after passage and publication of an approved summary
consisting of the title hereto whichever comes first.
PASSED by the City Council of the City of Federal Way
this
21st
day of
Tnnp
, 1994.
CITY OF FEDERAL WAY
MA~~rG:1~
SWANEY, CMC
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED: 6/25/94
EFFECTIVE DATE: 7/1/94
ORDINANCE NO. 94-213
6/1/94
6/21/94
ORD\NE\I)WI .ORD
ORD #
94-213
, PAGE 18