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Do I have to have an Ignition Interlock when I enter into a Mental Health Deferred Prosecution?

Posted by Nathan Webb | Mar 11, 2014 | 0 Comments

Now many of the attorneys practicing law in Washington state may shout out, NO! Absolutely not!  However, the short answer is yes, according to DOL.

Now all attorneys know that in any alcohol dependency case the petitioner is required under the applicable statute (RCW 10.05.140) to drive only a motor vehicle with a functioning ignition interlock device (IID) for a minimum period of a year.  Many of my colleagues and I believe the imposition of a IID is not required on a Mental Health or Drug problem petition for a Deferred Prosecution.

The applicable statute is as follows:

RCW 10.05.140

As a condition of granting a deferred prosecution petition, the court shall order that the petitioner shall not operate a motor vehicle upon the public highways without a valid operator's license and proof of liability insurance. The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490. As a condition of granting a deferred prosecution petitionon any alcohol-dependency based case, the court shall also order the installation of an ignition interlock under RCW 46.20.720. The required periods of use of the interlock shall be not less than the periods provided for in RCW 46.20.720(3). As a condition of granting a deferred prosecution petition, the court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160. To help ensure continued sobriety and reduce the likelihood of reoffense, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for alcoholism or drugs, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. The court may terminate the deferred prosecution program upon violation of the deferred prosecution order.

Recently, the Department of Licensing has implemented its' own "policy" to require the imposition of an IID on ANY deferred prosecution case, even if it is solely based upon Mental Health issues or Drug problems if it was originally charged as a DUI (RCW 46.61.502) or Physical Control (RCW 46.61.504).

Here is the policy:

Policy

Effective immediately ( January 29, 2013) all Deferred Prosecutions: Alcohol, Drug and Mental Health will require the appropriate 1, 5, or 10 year IID requirement as established under RCW 46.20.720.

RCW 46.20.720 holds:(1)  The court may order that after a period of suspension, revocation, or denial of driving privileges, and for up to as long as the court has jurisdiction, any person convicted of any offense involving the use, consumption, or possession of alcohol while operating a motor vehicle may drive only a motor vehicle equipped with a functioning ignition interlock. The court shall establish a specific calibration setting at which the interlock will prevent the vehicle from being started. The court shall also establish the period of time for which interlock use will be required.  (2) Under RCW 46.61.5055 and subject to the exceptions listed in that statute, the court shall order any person convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to comply with the rules and requirements of the department regarding the installation and use of a functioning ignition interlock device installed on all motor vehicles operated by the person. The court shall order any person participating in a deferred prosecution program under RCW 10.05.020 for a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to have a functioning ignition interlock device installed on all motor vehicles operated by the person.

Now the statement that the court "shall order" an ignition interlock infers the court must impose the ignition interlock for any person participating in a deferred prosecution.

Here is where it gets tricky, RCW 46.61.5055 5(a) holds:

The court shall require any person convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to comply with the rules and requirements of the department regarding the installation and use of a functioning ignition interlock device installed on all motor vehicles operated by the person.

In the particular case I was referencing with the DOL, the court actually did order the imposition for a IID but only for 3 months, not one year as is required for any alcohol dependency based DP under RCW 46.20.720 (3) and RCW 10.05.140.

However, the DOL's reliance upon RCW 46.20.720 I believe is misplaced because RCW 10.05.060 indicates that when a person is granted a Deferred Prosecution, the entry is not a conviction under RCW 46.61.5055.

RCW 10.05.060

Procedure Upon Approval of Plan

If the report recommends treatment, the court shall examine the treatment plan. If it approves the plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost thereof, if able to do so, or arrange for the treatment, an entry shall be made upon the person's court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan shall be filed with the court. If the charge be one that an abstract of the docket showing the charge, the date of the violation for which the charge was made, and the date of petitioner's acceptance is required to be sent to the department of licensing, an abstract shall be sent, and the department of licensing shall make an entry of the charge and of the petitioner's acceptance for deferred prosecution on the department's driving record of the petitioner. The entry is not a conviction for purposes of Title 46 RCW. Upon receipt of the abstract of the docket, the department shall issue the petitioner a probationary license in accordance with RCW 46.20.355, and the petitioner's driver's license shall be on probationary status for five years from the date of the violation that gave rise to the charge. The department shall maintain the record for ten years from date of entry of the order granting deferred prosecution.

Well, where does this leave us?  The only way to address this issue is to take the Department of Licensing up on a Writ to Superior Court.  Be aware when considering a Mental Health or Drug Deferred Prosecution petition, because accordingly the DOL will require an IID for one year.

About the Author

Nathan Webb

Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by Avvo.com.

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