AN ORDINANCE relating to persons under the influence of intoxicating liquor or any drug, amending Section 11.56.020 of the Seattle Municipal Code.

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Subsection N of Section 11.56.020 of the Seattle Municipal Code (Ordinance 108200 2 (11.56.020), as last amended by Ordinance 118105 4) is further amended to read as follows:

N. Penalty.

1. a. A person who is convicted of a violation of subsection A or B of this section, who has no prior offense within five (5) years and whose alcohol concentration was less than 0.15, or for any reason other than the person's refusal to take a test offered pursuant to subsection D of this section there is no test result indicating the person's alcohol concentration, shall be punished by imprisonment for not less than twenty-four (24) consecutive hours nor more than one (1) year and by a fine of not less than Three Hundred Fifty Dollars ($350.00) and not more than Five Thousand Dollars ($5,000.00). In lieu of the mandatory minimum term of imprisonment required under this subsection N1a, the court may order not less than fifteen (15) days of electronic home monitoring.

b. A person who is convicted of a violation of subsection A or B of this section, who has no prior offense within five (5) years and whose alcohol concentration was 0.15 or more, or who refused to take a test offered pursuant to subsection D of this section, shall be punished by imprisonment for not less than two (2) consecutive days nor more than one (1) year and by a fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00). In lieu of the mandatory minimum term of imprisonment required under this subsection N1b, the court may order not less than thirty (30) days of electronic home monitoring.

2. a. A person who is convicted of a violation of subsection A or B of this section, who has one (1) prior offense within five (5) years and whose alcohol concentration was less than 0.15, or for any reason other than the person's refusal to take a test offered pursuant to subsection D of this section there is no test result indicating the person's alcohol concentration, shall be punished by imprisonment for not less than thirty (30) consecutive days nor more than one (1) year and by a fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00).

b. A person who is convicted of a violation of subsection A or B of this section, who has one (1) prior offense within five (5) years and whose alcohol concentration was 0.15 or more, or who refused to take a test offered pursuant to subsection D of this section, shall be punished by imprisonment for not less than forty-five (45) consecutive days nor more than one (1) year and by a fine of not less than Seven Hundred Fifty Dollars ($750.00) nor more than Five Thousand Dollars ($5,000.00).

3. a. A person who is convicted of a violation of subsection A or B of this section, who has two (2) or more prior offenses within five (5) years and whose alcohol concentration was less than 0.15, or for any reason other than the person's refusal to take a test offered pursuant to subsection D of this section there is no test result indicating the person's alcohol concentration, shall be punished by imprisonment for not less than ninety (90) consecutive days nor more than one (1) year and by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00).

b. A person who is convicted of a violation of subsection A or B of this section, who has two (2) or more prior offenses within five (5) years and whose alcohol concentration was 0.15 or more, or who refused to take a test offered pursuant to subsection D of this section, shall be punished by imprisonment for not less than one hundred twenty (120) consecutive days nor more than one (1) year and by a fine of not less than One Thousand Five Hundred Dollars ($1,500.00) nor more than Five Thousand Dollars ($5,000.00).

4. a. "Prior offense" means any of the following:

(i) a conviction for a violation of subsection A of this section, RCW 46.61.502 or equivalent local ordinance;

(ii) a conviction for a violation of subsection B of this section, RCW 46.61.504 or equivalent local ordinance;

(iii) a conviction for a violation of RCW 46.61.520 committed while under the influence of intoxicating liquor or any drug;

(iv) a conviction for a violation of RCW 46.61.522 committed while under the influence of intoxicating liquor or any drug;

(v) a conviction for a violation of Section 11.58.005 A, RCW 46.61.525(1) or equivalent local ordinance, if the conviction was the result of a charge that was originally filed as a violation of subsection A or B of this section, RCW 46.61.502 or RCW 46.61.504, or equivalent local ordinance, or RCW 46.61.520 or RCW 46.61.522;

(vi) an out-of-state conviction for a violation that would have been a violation of subsections N4a(i), (ii), (iii), (iv) or (v) of this section if committed within this state; or

(vii) a deferred prosecution under RCW Chapter 10.05 granted in a prosecution for a violation of subsection A or B of this section, RCW 46.61.502 or RCW 46.61.504 or equivalent local ordinance; or

(viii) a deferred prosecution under RCW Chapter 10.05 granted in a prosecution for a violation of Section 11.58.005 A, RCW 46.61.525(1), or equivalent local ordinance, if the charge under which the deferred prosecution was granted was originally filed as a violation of subsection A or B of this section, RCW 46.61.502 or RCW 46.61.504, or equivalent local ordinance, or RCW 46.61.520 or RCW 46.61.522.

b. "Within five (5) years" means that the arrest for the prior offense occurred within five (5) years of the arrest for the current offense.

5. For purposes of sentencing pursuant to subsections N1, N2, and N3 of this section, the judge shall determine, based on a preponderance of the evidence, the number of prior offenses within five (5) years the person has, whether the person's alcohol concentration was less than 0.15 or 0.15 or more, whether the person refused to take a test offered pursuant to subsection D of this section or whether for any reason other than the person's refusal to take a test offered pursuant to subsection D of this section there is no test result indicating the person's alcohol concentration. The prosecutor or the court may obtain an abstract of the person's driving record, which shall be prima facie evidence of the person's prior offenses.

6. Unless the judge finds the person to be indigent, the mandatory minimum fine shall not be suspended or deferred. The mandatory minimum jail sentence shall not be suspended or deferred unless the judge finds that the imposition of this jail sentence will pose a substantial risk to the defendant's physical or mental wellbeing. Whenever the mandatory minimum jail sentence is suspended or deferred, the judge must state, in writing, the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based. Whenever the court sentences an offender to a period of electronic home monitoring, the court may also require the offender's home electronic monitoring device to include an alcohol detection breathalyzer and may restrict the amount of alcohol the offender may consume during the period of electronic home monitoring. The cost of electronic home monitoring shall be paid for by the offender and determined by the City. In exercising its discretion in setting penalties within the limits allowed by this subsection, 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 another's property, whether the person's license, permit or privilege to drive was suspended, revoked, denied or in probationary status at the time of the offense, violation and whether the person was in compliance with Section 11.20.340 at the time of the offense and whether the person was driving or in actual physical control of a vehicle with one (1) or more passengers at the time of the offense violation.

7. A person convicted under this section 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 at 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 of a conviction under this section and whenever it orders a person to complete a course or treatment under this subsection N7 of this section. 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 sent 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 or more intensive treatment.

8. In addition to any nonsuspendable and nondeferrable jail sentence required by this subsection, whenever the court imposes less than one (1) year in jail, the court shall also suspend but shall not defer a period of confinement for a period not exceeding five (5) two (2) 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 0.08 or more within two (2) 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 probable cause 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. For each violation of mandatory conditions of probation (i) and (ii) or (i) and (iii) of this subsection N8 of this section, the court shall order the convicted person to be confined for thirty (30) days, which shall not be suspended or deferred. For each incident involving a violation of a mandatory condition of probation imposed under this subsection N8 of this section, the court shall suspend the person's license, permit or privilege to drive for thirty (30) days or, if the person's license, permit or privilege to drive already is suspended, revoked or denied at the time the finding of probation violation is made, then the suspension, revocation or denial then in effect shall be extended by thirty (30) days. The court shall notify the Washington State Department of Licensing of a person's violation of any mandatory condition of probation imposed under subsection N8 of this section and the suspension of or extension of the suspension, revocation or denial of a person's license, permit or privilege to drive. 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 during the suspension period.

9. At the time a person is convicted on the third occasion within five (5) years of driving a motor vehicle while under the influence of intoxicating liquor or any drug, the convicting court shall notify the person, orally and in writing, that the person may not possess a firearm unless the person's right to do so is restored by a court of record. The convicting court also shall forward a copy of the person's driver's license or identicard, or comparable information, to the Washington State Department of Licensing, along with the date of conviction.

10. In addition to the penalties set forth in this subsection, a fee of One Hundred Twenty-five Dollars ($125.00) shall be assessed to a person who is either convicted, sentenced to a lesser charge or given a deferred prosecution as a result of an arrest for violating subsection A or B of this section, RCW 46.61.520 or RCW 46.61.522. 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. The fee shall be collected by the clerk of the court and distributed according to RCW 46.61.5054.

Section 2. This ordinance shall take effect and be in force from and after June 11, 1998.

Passed by the City Council the _____ day of ____________, 1998, and signed by me in open session in authentication of its passage this _____ day of _________________, 1998.

_____________________________________

President _______ of the City Council

Approved by me this _____ day of _________________, 1998.

___________________________________________

Mayor

Filed by me this _____ day of ____________________, 1998.

___________________________________________

City Clerk

(Seal)

RG: rg April 22, 1998 98DUI.DOC (Ver. )