Retaining The Driving Privilege

RETAINING THE DRIVING PRIVILEGE--
Administrative Suspensions, Consequences of a DUI, and
the Ignition Interlock Device

Retaining the driving privilege is oftentimes the main priority for clients who are accused of DUI or related offenses. Therefore, it is important to understand the potential licensing consequences (1) following an arrest for DUI, but before conviction, and (2) following a conviction. It is also important to understand what must be done in order to continue to drive when faced with either an administrative suspension or mandatory statutory sentencing.

Administrative Suspensions--Licensing Consequences Following Arrest

Following an arrest for DUI or similar offense, an administrative case arises in the Washington State Department of Licensing (hereinafter "DOL"). This is due to the "implied consent" laws in Washington.

Any person who operates a motor vehicle within Washington State is deemed to have impliedly given their consent to a test of their breath or blood for the purpose of determining alcohol concentration or presence of any drug if arrested for DUI or related offense.1 If, after arrest, a test of a person's breath or blood is .08 or more if the person is 21 or older, or .02 or more if the person is under the age of 21, or the person refuses to submit to a test, the arresting officer (or DOL in the case of a blood test) will give the person notice in writing that the DOL intends to suspend the person's privilege to drive. This notice will also inform the person of their right to an administrative hearing to contest the suspension. 2

If the person fails to request a hearing, the DOL will automatically suspend the person's driving privileges beginning on 60 days from the date of arrest (or from the date the DOL gives notice to the person if a blood draw was administered).3 However, this automatic license suspension will be "stayed" if the person facing a license suspension requests a hearing by submitting the Driver's Hearing Request to the DOL with the required $200.00 fee within 20 days after the notice of suspension has been given. 4

Therefore, requesting a hearing is a good way to initially retain the privilege to drive. A properly submitted hearing request will result in the extension of the temporary license deemed to exist after an officer gives notice to the DOL that the person's breath or blood was over the legal limit or that the person refused.5 Additionally, this temporary license will be extended when the administrative hearing is continued after a Request to Reschedule an Administrative Hearing is properly submitted to the DOL.6 Furthermore, the filing of an "Intent to Seek Deferred Prosecution" with the DOL will stay a license suspension pending entry of the deferred prosecution for 150 days.7

If the individual fails to request a hearing, loses the administrative hearing, or refused a breath or blood test, the DOL will suspend the person's driving privileges as follows:

(1) If the person refused a breath or blood test:

(a) Suspension of driving privileges for one year if it is the person's first refusal within seven years;

(b) Suspension of driving privilege for two years if it is the person's second refusal within seven years;

(2) If the person submitted to the test and the test indicated the person's breath or blood was .08 or more:

(a) Suspension of driving privileges for 90 days if it is the first incident within seven years;

(b) Suspension of driving privileges for two years if it is the second incident within seven years

(3) If the person was under 21 and the person's breath or blood was .02 or more (but not more than .08):

(a) Suspension of driving privileges for 90 days if it is the first incident within seven years

(b) Suspension of driving privileges for one year or until the person reaches 21, whichever is longer, if it is the second incident within seven years.8

Therefore, a person accused of DUI or similar offense may have their driving privileges suspended regardless of whether they have been convicted of DUI in the criminal context.

Statutory Sentencing Requirements--Licensing Consequences Following Conviction

Licensing consequences will also arise as a result of a conviction for DUI or related offense. These consequences are separate from the administrative sanctions outlined above. It is possible that one can prevail in an administrative hearing and avoid an administrative suspension of driving privileges, but still face licensing consequences as a result of a criminal conviction.

A person who is convicted of a DUI or related offense will be required to apply for an ignition interlock driver's license from the department and to have a functioning ignition interlock device installed on all motor vehicles operated by the person.9 The period of time for which ignition interlock use is required is as follows:

(1) A period of one year for a person who has not previously been required to use an ignition interlock device

(2) A period of five years for a person who has been previously required to use an ignition interlock device for one year

(3) A period of ten years for a person who has been previously required to use an ignition interlock device for five years.10

However, an ignition interlock device is not necessary on vehicles owned, leased, or rented by a person's employer and driven at the direction of the person's employer as a requirement of employment during working hours.11 Additionally, the court may waive the requirement that a person apply for an ignition interlock driver's license if the court makes specific findings that (i) the person lives out-of-state and the devices are not reasonably available in the person's local area; (ii) the person does not operate a vehicle; or (iii) is otherwise not eligible to receive an ignition interlock license.12

Retaining the Driving Privilege in Lieu of License Suspension--Ignition Interlock Device

Clients accused of DUI or related offenses have the option to apply for an ignition interlock device before an administrative suspension goes into effect. In fact, a person may apply for an ignition interlock driver's license anytime, including immediately after receiving notice that the department will suspend his or her driver's license or even after license suspension. However, when a person receives an ignition interlock license their right to an administrative hearing or appeal is waived.13

Therefore, it is important to discuss the timing of the filing of Ignition Interlock Driver License Application with your attorney. An administrative hearing may be a useful tool--it can be used by the attorney to cross-examine the arresting officer under oath, build evidence, and create a record. The arresting officer's testimony may be useful for a variety of reasons in the criminal context.

In order to apply for an ignition interlock driver's license the applicant must complete an Ignition Interlock Driver License Application.14 A fee of $100.00 is also required.15 To be eligible, the applicant must provide proof to the DOL that a functioning ignition interlock device has been installed on all vehicles operated by the person.16 Additionally, the applicant must pay the cost of installing, removing, and leasing the ignition interlock device and must pay an administrative fee of $20.00 per month. Such payments must be made directly to the ignition interlock company.17

The applicant must also provide satisfactory proof of financial responsibility.18 This is commonly achieved through obtaining a "certificate of insurance" as proof. The certificate of insurance is oftentimes called "SR 22 insurance."19 The cost of SR 22 insurance varies and can range from $300.00 to $600.00 or more for a sixth month period.20 The applicant must file this written certificate (obtained from an insurance carrier who is authorized to do business in Washington) with the DOL and the certificate must certify that the applicant has the proper motor vehicle liability policy.21 The DOL will require that the applicant provides such proof of responsibility for three years.22

As indicated above, the installation of an ignition interlock device is not necessary on vehicles owned, leased, or rented by a person's employer and driven at the direction of a person's employer during working hours. But, to drive such vehicles, the applicant must provide the DOL with a declaration from his or her employer stating that the person's employment requires the person to operate a vehicle owned by the employer during working hours.23

CONCLUSION

Ultimately, an administrative suspension or DUI conviction carries licensing consequences that can have a major impact on one's employment, social life, recreation, and general welfare. However, an active approach and proper planning can result in one successfully retaining the ability to drive. It is possible to continue living a normal life in lieu of a license suspension.


1 RCW 46.20.308(1)
2 RCW 46.20.308(6)
3 RCW 46.20.308(7)
4 RCW 46.20.308(8); Hearing Request form available online
5 Id.
6 WAC 308-103-170
7 RCW 46.20.308(10); however, this is not the case if the person refused a breath or blood test.
8 RCW 46.20.3101
9 RCW 46.61.5055(5)(a)
10 RCW 46.61.5055(5)(g)
11 RCW 46.61.5055(5)(b)
12 RCW 46.61.5055(5)(d).
13 RCW 46.20.385(b)
14 RCW 46.20.385(1)(a); Application available online
15 RCW 46.20.380
16 RCW 46.20.385(1)(c)
17 RCW46.20.385(6)(a)
18 RCW 46.20.385(2)
19 32 WAPRAC S1:15
20 32 WAPRAC S1:15
21 RCW 46.29.460
22 RCW 46.29.600
23 RCW 46.20.385(1)(c)(i); Declaration available online