New DUI Program Requires Mandatory Daily Monitoring: Protection For The Public Or Undue Burden On Offenders?

Submitted by Darren Smith, Guest Blogger

Breath Test DeviceA pilot program has been initiated in four Washington counties and two municipalities. Essentially the program requires those convicted of a second DUI offense are required to 24/7 daily monitoring consisting of a twice daily visit to a jail for a breath test or an ankle monitor capable of reading breath samples. Both options are mandated at cost to the offender. A newly created state law, effective January first, provides for this program named the 24/7 Sobriety Program Pilot Project.

The program is the result of repeat DUI offenders who have posed significant risk to the public and have shown to not be easily deterred from future violations by present statutes and sentencing. Yet some may question the effectiveness of the program and whether it places an undue burden on offenders who might not have the means to comply.

In 2013 the state legislature passed laws creating the program and that it be maintained by the Washington Traffic Safety Commission with consultation with the Washington Association of Sheriffs and Police Chiefs. The pilot program is to be run for three years and participation is subject to willing participation by law enforcement agency administrators. In 2017 the program is to be statewide.

Pertinent elements to this article of the program are as follows:

    1. RCW 10.21.055 requires that a person arrested for DUI, Physical Control of a Motor Vehicle While Intoxicated, Vehicular Homicide, or Vehicular Assault who has a previous conviction for these offenses as a condition of being released from trial or arraignment be subject to having an Ignition Interlock device on vehicles they own and operate and / or participate in the 24/7 Sobriety Program. Upon acquittal or dismissal of charges the court shall authorize removal of the interlock and end participation in the 24/7 program.
    2. RCW 36.28A.330 includes definitions “24/7 electronic alcohol/drug monitoring” means the monitoring by the use of any electronic instrument that is capable of determining and monitoring the presence of alcohol or drugs in a person’s body and includes any associated equipment a participant needs in order for the device to properly perform. Monitoring may also include mandatory urine analysis tests as ordered by the court” and “24/7 sobriety program” means a twenty-four hour and seven day a week sobriety program in which a participant submits to the testing of the participant’s blood, breath, urine, or other bodily substances in order to determine the presence of alcohol, marijuana, or any controlled substance in the participant’s body.”
    3. RCW 36.28A.360 The Washington association of sheriffs and police chiefs may adopt policies and procedures for the administration of the 24/7 sobriety program to: (2) Establish fees and costs for participation in the program to be paid by the participants.
    4. RCW 36.28A.360 (1)(a) Any daily user fee, installation fee, deactivation fee, enrollment fee, or monitoring fee collected under the 24/7 sobriety program shall be collected by the sheriff or chief, or an entity designated by the sheriff or chief, and deposited with the county or city treasurer of the proper county or city, the proceeds of which shall be applied and used only to defray the recurring costs of the 24/7 sobriety program including maintaining equipment, funding support services, and ensuring compliance (2) All applicable fees shall be paid by the participant contemporaneously or in advance of the time when the fee becomes due.
    5. RCW 36.28A.380 The court shall not waive or reduce fees or associated costs charged for participation in the 24/7 sobriety program.
    6. RCW 36.28A.390
      • (1) A participant who violates the terms of participation in the 24/7 sobriety program or does not pay the required fees or associated costs shall:
        • (a) Receive a written warning notice for a first violation;
        • (b) Serve a term of two days imprisonment for a second violation;
        • (c) Serve a term of up to five days imprisonment for a third violation;
        • (d) Serve a term of up to ten days imprisonment for a fourth violation; and
        • (e) For a fifth violation, the participant shall serve the entire remaining sentence imposed by the court.
      • (2) A sheriff or chief, or the designee of a sheriff or chief, who has probable cause to believe that a participant has violated the terms of participation in the 24/7 sobriety program or has not paid the required fees or associated costs shall immediately take the participant into custody and cause him or her to be held until an appearance before a judge on the next judicial day.
    7. RCW 46.61.5055 Penalty Schedule for Alcohol and Drug Violators (Traffic Law). This statute has a matrix that is too complex for discussion here but in essence it addresses the punishments for alcohol traffic convictions. Succinctly for the 24/7 program it directs the court, based upon the prior history of the defendant, blood alcohol level post arrest, and other requirements to impose home monitoring for generally 30 days and in some cases 364 days. If the court decides to waive the 24/7 home monitoring it must explain the decision and shall substitute additional jail time in lieu of the monitoring requirement.News reports indicated the current costs to the defendant are $4.00 per day for the breath test performed at a police station or jail and $12.00 per day for an ankle monitor.

Vehicle CollisionThere are many issues raised by this program. Frequently it is the case where a judge as a condition of pre-trial release will order the defendant to abstain from alcoholic beverages subject to contempt if violated. Ignition Interlock devices have been around for decades and are often used for various offenses requiring their use. An interlock device is one installed into the defendant’s vehicle and it requires a breath sample showing minimal alcohol on breath before it will start the vehicle. Defeating the interlock or permitting another to provide the sample is a crime. Under the interlock system the defendant is only required to provide a sample if driving.

Monitoring 24/7 addresses the issue where a person might become intoxicated in violation of terms of release and acquire another vehicle and drive under the influence again. Yet the defendant might find another method to defeat the home monitor as well.

But more importantly are some large deviations from standard criminal procedures regarding pre-trial or pre-arraignment release. The defendant is required under these new laws and programs to submit at his or hew own cost to this program; that is pay for this monitoring prior to a conviction. Since trials are sometimes months later in the future, especially if the defendant waives a speedy trial the cost can add up quickly. Even if the defendant did not waive her right to a speedy trial, and is not incarcerated, the prosecutor can bring the case to trial up to ninety days after arrest. If the defendant selected the ankle monitor device at the current rate he would be subject to per diem fees of $1,080.00 and could in principle and in practice have their case dismissed or found not guilty. Yet, they are subject to arrest if the payment is not made.

Another problem relates to practicality of the law. Chapter 46.20 RCW contains a statute where if a driver is arrested for an alcohol criminal traffic offense, such as DUI, and they provide a breath test resulting in a reading above the state presumptive intoxication rate (.08) the Department of Licensing will suspend the driver’s license for ninety days. If the defendant refuses the breath test, the DOL will suspend the license for one year. How does this relate to our topic? If the pre-trial defendant is required to participate in the 24/7 program and is of very low income, the defendant might not be able to afford the twelve dollar monitoring service and might elect to have the testing at a local jail. A problem with this is the location of the jail. Counties such as Chelan, has only one jail facility located in Wenatchee, near the extreme south of the county. A person having to travel to receive the testing at the jail might have to travel an hour or more one way. Furthermore, that person is prohibited from driving and would twice daily have to arrange for another person to transport them, or to rely on limited public transit services. They are then forced into the $12.00 ankle monitoring service.

In paragraph 2) above the statute permits bodily fluids as being used as well as blood to determine alcohol or substance use. Washington State courts require a search warrant to obtain samples taken from inside the defendant’s body with a few exceptions (such as DUI unconscious or DUI with likelihood of death) yet this clause implies the test can bypass this requirement. Furthermore, as permitted of the state by the statute, the home monitoring test can, though implementation might differ, require the defendant to submit to tests at a very inconvenient hour or at times that disrupt their work and an employer.

Section 3) provides a non-government agency, the Washington State Association of Sheriffs and Police Chiefs to implement rules and designate the fees to be charged to the defendant. It is not the courts, as in the case of traffic infraction (tickets) penalties as the state supreme court designates, or even to a limited degree the judge, that decides this. In the case of Ignition Interlock devices licensed and certified private vendors compete for defendant’s business to provide the interlock device. Here a fourth branch of government does. In fact, it is so hard that under paragraph 5) above the court itself is prohibited from lowering or eliminating the cost to the defendant. Furthermore the statute reads the local agencies will provide the defendants the equipment for the ankle brace technology which subjects the defendant to paying a multitude of other fees including installation fees, monitoring fees, and, absurdly, disconnection fees. All of this can happen before or after conviction. If the defendant is found not guilty, or has charges dismissed at arraignment, there is no provision to return the fees paid by the defendant, and the fees can increase at any time under the discretion of WASPC.

Under paragraph 6) some might see as most concerning. Essentially it provides for summary arrest if the defendant fails test or does not pay fees associated with the 24/7 program. In fact, it is so hard law enforcement officers have no discretion and “shall arrest and take the defendant into custody pending appearance before the court.” This is a substantial deviation from decades of criminal procedure in Washington. First, arrests for non-payment of fines, as assessed by courts result in bench warrants being issued. Failures to pay fine for traffic fines only result in suspensions of driver license. Police officers cannot arrest for these failures to pay fines of courts without an arrest warrant issued by that court. But in this new statute, failure to pay a local police department administering the 24/7 program a fee the department, which manages the program, can summarily arrest the defendant. The defendant can also be summarily arrested for failure to pass the breath sampling. Plus, the defendant is mandated to serve time outside the sentencing guideline that might be the purview of the courts ordinarily.

Washington State SealOne truly unfair aspect of the testing is that those who cannot afford the more expensive home monitoring option are required to go to the police station or jail for their twice daily test. If they fail the test, they are booked into jail right there and then, while those able to be at home can stay at home and the police will need a search warrant to enter, possibly avoiding the arrest.

While the former system used, the Ignition Interlock Device, was only needed if the defendant chose to drive, the 24/7 system is substantially more intrusive even if the defendant chooses not to drive. Hopefully at least, the home monitoring device is such that it give s 15 minutes warning before the defendant blows into it, in the event he uses mouth wash or a cold remedy so that mouth alcohol does not give a false reading, and the device is capable of distinguishing acetone sometimes in the breath of those with health issues.

Lastly, have we not forgotten the station of those having alcohol dependence? One day they are arrested for DUI, released on pre-trial and suddenly have to submit to twice daily testing and total abstinence from alcohol. Is this even realistic from a practical and medical point of view? Would it result in admissions to hospital those suffering extreme alcohol withdrawal symptoms?

This is a new program as one has to recognize but are the legal and personal costs worth the benefit to the greater society? What do you think?


King 5 News

Revised Code of Washington

41 thoughts on “New DUI Program Requires Mandatory Daily Monitoring: Protection For The Public Or Undue Burden On Offenders?

  1. #5 seems to me just wrong. It effectively makes sure someone of low or no means is guaranteed jailtime.
    (I was watching a T show last night, woman was on her 5th DUI conviction and this time going to prison for 2+ years – 5. She still sid she had no problem with alcohol. Monitoring may make no difference to someone who refuses to accept their responsibility/inability to not drive after drinking.
    (The essentially guilty until proven certainly seems against the way e deal with crimes.).

  2. Are there problems with this law? Yep. Do we have a serious problem with repeat offenders? Yep. How do we do it? I don’t know. I do know that we still treat DUI as a small time thing when it should be treated as attempted murder. If I take a gun and randomly shoot it in a city, what is a likely outcome? If I drink and drive, what is a likely outcome?

    I drink a glass of wine every night with dinner. When I’m out for dinner I have a glass of wine, if I’m with two or more, a bottle of wine might be shared.

    One offense slightly over is all you get. Second offense is an attempted murder charge, that is unless you actually kill somebody, then it is murder 1.

    It seams the defense lawyers in this country are the most concerned about getting people off of DUI convictions. DUI kills, stop this madness.

  3. The majors in the minors need to get real before implementing a real solution:

    1. Distracted Driving

    Distracted driving continues to be the number one leading cause of car accidents in America. Talking on the phone, texting, eating, reading, grooming, and talking are just some of the ways drivers get distracted behind the wheel. Drivers who use a hand-held device are 4 times more likely to get into a car accident than drivers that pay attention to the road ahead. Individuals who text message while driving are 23 times more likely to get into an accident. Do not risk your safety or your life. Put everything down and pay attention to the road ahead. It’s the single most important thing you can do today to reduce your risk of getting into a car accident.

    2. Speeding

    Everything around us is centered on the lure of quick convenience. Drive-thrus, ATMs, and corner stores are just some examples of our need for speed. But on the roadway, speed is undoubtedly deadly. Speeding is one of the most prevalent causes of car accident today according to the U.S. Department of Transportation. Speeding contributes to about a third of all car accidents in America. Slow down and give yourself ample time to get where you need to go. It’s not worth saving 10 minutes for the potential of losing your life or putting another person in danger.

    3. Drunk Driving

    Driving under the influence is one of the most dangerous behaviors on the road today. Over 1.41 million drivers were arrested in 2010 on suspicion of driving under the influence. MADD – Mothers Against Drunk Driving – estimates that 300,000 incidents of drunk driving occur daily. It goes without saying that drunk driving is hazardous and irresponsible. Accidents that occur by way of drunk driving are completely preventable. Do your part by always designating a sober driver well ahead of time. Prepay and arrange for your taxi ride before going out. And hide your friends’ keys if you suspect they may be too intoxicated to drive.


  4. The church and industry that is involved with this movement, like the privatization of prisons industry, is the real driving force behind this issue:

    “The temperance movement was the social concern which most broadly captured the interest and enthusiasm of the Methodist Church. The movement was strongly tied to John Wesley’s theology and social principles. Wesley’s abhorrence of alcohol use was taken up by American Methodists, many of whom were active and prominent leaders within the movement … The Methodist stance against drinking was strongly stated in the Book of Discipline. Initially, the issue taken was limited to distilled liquors, but quickly, teetotalism became the norm and Methodists were commonly known to abstain from all alcoholic beverages … Due to the temperate stance of the church, the practice of Eucharist was altered — to this day, Methodist churches most commonly use grape juice symbolically during Communion rather than wine. The Methodist church distinguished itself from many other denominations in their beliefs about state control of alcohol. Where many other denominations, including Roman Catholics, Protestant Episcopalians, Lutherans, and Unitarians, believed that the ill-effects of liquor should be controlled by self-discipline and individual restraint, Methodists believed that it was the duty of the government to enforce restrictions on the use of alcohol. In 1904, the Board of Temperance was created by the General Conference to help push the Temperance agenda … To this day, the Women’s Division of the General Board of Global Missions holds property across on Capitol Hill in Washington, DC, which was built using funds provided by laypeople. Women of the church were responsible for 70% of the $650,000 it cost to construct the building in 1922. The building was intended to serve as the Methodist Church’s social reform presence of the Hill. The Board of Temperance, Prohibition and Public Morals was especially prominent within the building.

    “Bob was raised in that kind of environment where everything rotates and revolves around the activities of the church, the rhythms of the [Methodist] church, the rituals of the church … “At this point in American history, in American culture, in a small town, in the Midwest, everything revolves around the church. Nothing takes place that is not in some way headquartered and centered in that church. A pastor is a high prestige position, high esteem, in a small town. So Bob Dole grew up in an environment where everything is ordered and organized by the rituals and the rhythms of that church. And he learned the small town values of a, of a church that is this white clap or steeple church that is kind of a, almost a cliche, but everything it stands for has an ordering, organizing, a centering of one’s life and that’s where, that’s where religion was centered and that’s where you centered your faith, through the rhythms and rituals of that church.”

    (Church Chat). That is a discussion of the church that owns, literally, a chunk of capitol hill and is still influential in having dumb prohibition type laws injected into the mainstream.

    We still suffer from their prohibition, which created organized crime.

    Speaking of “unintended consequences” as mentioned by OS.

  5. Whatever punishment you advocate for those in category #3 (Drunk Driving). must be increased for category #2 (Speeding) and category #1 (Distracted Driving) if you are to claim logic and proportion.

    Or intellectual honesty?

  6. Let’s say 10x (x=thousands or millions) people are killed by vehicles with drivers in them.

    1x are killed by #3 Drunk Driving.
    4x are killed by #2 Speeding
    5x are killed by #1 Distracted Driving

    Is the issue morality, ethics, or the dead bodies that should form the opinion as to the solution?

    Is 1x deaths worse than 4x and 5x?

    If not, why is that the major concern?

    Is that sensible?

  7. **Darrel C Carlson 1, January 5, 2014 at 10:08 am

    What is wrong with this picture folks! **

    Your outcome bias is what’s wrong with your picture Darrel!

  8. I live in an alcoholic state, Wi. There are almost daily examples of people getting their 6th, 7th-12th DUI. It’s insane. I applaud what Washington is doing. Folks often ask us to be more like Europe. Most of the time I disagree. But, regarding their VERY tough DUI laws, I agree. You know in Italy, it is not even acceptable to get drunk, driving or not.

    Dredd, You are quite correct about distracted drivers. I have worked auto accident civil cases. I was assigned a fatal accident case in 1992. This was very early on in the cell phone era. After interviewing many witnesses, it was apparent this driver, who killed himself and seriously injured another driver, was on his cell phone. We obtained the records and it appeared he was on the phone. I traced the number to a city building permit guy. He said he could tell the guy was on his cell[they were pretty bad back then] and the conversation abruptly ended. They were from different counties and the permit guy didn’t hear about the accident. After that, I began urging all clients to spend the resources to get cell phone records in all cases where the drivers had cell phones. Now, I got my first cell in 1989[have the same #, it was a bag phone like you see in WW2 flicks]. But in 1992 mostly business people who were on the road a lot had them. The explosion in cell usage wouldn’t come for another decade or so. The smart clients did follow my advice and it has paid off many times, MORE and more.

  9. I hate issues just like this one.

    It seems most people are so attached to their personal opinions they are unable to detach themselves from those strongly held opinions to allow for all the facts considered in determining what is really happening.

    This may go right over most people’s heads as to the relevancy of this next question, but it goes to the point of what you actually know & understand of all the issues/facts regards the stats of each of the individual cases compiled into the large group of stats you use for your normalcy bias.

    ** How many Mc Donald’s hamburger wrappers & pepsi/coke containers were found at the scene of every claimed DUI related wreck?**

    A point I will continue to make is I know there are at least 280 toxic industrial chemicals in your/everyone’s blood before you even think about taking that 1st drink of alcohol.

    So the 1st thing we know as a fact is that your judgment is already impaired when you are considering these issues.

    2nd, everyone’s bodies handles their toxins/booze somewhat differently, especially consider previous exposer to toxins/booze, according to their weight & other sets of circumstances.

    The one constant that remains as true today as it was a 100 years ago, most of your methods currently used to solve this problem fail as completely as those same methods failed 100 years ago yet you continue to insist next time it will work for sure.

    How many do overs do you suggest you will need before the results of your bias are successful?

  10. @Oky1….I love the McDonald’s hamburger wrappers “logic,” I have decided that drinking and driving…even way under the “legal limit,” is too risky because Murphy will be waiting to send a crazy but sober driver or pedestrian into one’s path. In today’s society, regardless of any facts at hand, the resulting accident would be labeled as “alcohol related” ….with a civil suit, or worse, to follow.

  11. A state senator told me, when i was in my mid 20’s, that NO laws are passed unless there’s money to be made by certain interests — which, in this case,
    are easy to identify, and they include LEorgs., bail bond co’s, lawyers,
    and on and on.

    No victim? No problem. Blow.

  12. Darrel C Carlson: ‘Let’s just imagine that your loved one has been killed or worse by some inconsiderate act of thoughtless negligence. ‘

    Darrel, playing on the emotions rarely makes good law.

  13. The injured victims & the families of those killed are rightfully angry.

    Most of the drinkers, unless suicidal, never set out to harm anyone.

    Society, through the state has decided to keep booze legal & tax & license the heck out of it. I think hard liquor tax is about 66% of the price.

    The disgusting part of the equation is Wallst Banks/Insur Co’s.

    Catherin Austin Fitts, you can still find online, worked for a firm, Drillion, Reed something, years back when the 1st private for profit prisons were sat up.

    A cattle rancher let’s say makes $500 a head off his cattle.

    CA Fitts informs us the way Wallst ranches Humans just like the Cattle Biz except Wallst values prisoners at $25,000 to $33,000 a Human Head on average.

    As it currently stands LE/Courts/Polecats/Med community uses the DUI issue as a Show N Tell feel good issue for the Church Ladies.

    Maybe it could be the issue gives LE/Courts/Polecats the false sense of thinking they are heroes when they are not.

    Moving to one of many other aspects of the issue, you too can demonstrate at home the effects of outside toxics on your own body in the presents of alcohol.

    All one needs to do is work around legal paint solvents or a fumy small gasoline engine all day, then drink some alcohol after your are done.

    Pay close attention to your mood swings.

    Withing 3 days the solvents or the gasoline fumes & alcohol afterwards will likely cause you to instigate a verbal/physical fight with friends or family.

    Or you could just ask any painter or anyone working around gasoline fumes that has a few drinks.

    Now all that may be interesting, but you have much bigger problems then DUIs.

    You/we are currently under full scale attack from every direction by some inside our govt & foreign interest.

    This isn’t WW2, Nam or the last war so you may not recognize it.

    One real example of their violent attack against us all is that we see in the news the reintroduction of one of the main ingredients to Agent Orange.

    How many millions of square miles of farm land is there in the USA?

    Much of it will likely be sprayed by that chemical agent. It will make it’s way into the food, air, water, meds, etc.

    I see it as another full blown chemical attack against us all & worthy of a Nuremberg type trials for the offenders.

    You’re unsure, go online & view for yourself the Flipper Babies still being born in Nam, born that way because of Agent Orange.

    So next time you decide to have a drink & stop by the liquor store you might as well stop by Lowes, Home Depot, Wallmart’s garden shop & pick yourself up a gallon jug of Agent Orange as a chaser for your booze as it seems to be coming anyway. (Sarc Off)

    Now, let us all get back to blaming everything on the drinkers, the blacks, no it’s the gays, no it’s the women to blame, etc.

    Let’s continue to blame everyone but the main culprits, Wallst, Polecats & their enablers.

    From here on out I will not be voting for any more bond issues & will be supporting massive tax cuts until govt is reduced by 2/3rds it’s current level.

    Some of the reasoning is why haven’t the govt set up gestapo check points outside of all Monsanto’s operations & arrested them?

    Why hasn’t govt set up Gestapo Check Points where the Wallst ring leader scum hang out & arrest them?

    Well fine, they won’t go after the mafia ring leaders, we’ll just have to withdraw consent.

  14. **on 1, January 5, 2014 at 7:54 am Otteray Scribe


    Rhetorically, how many of those offenders were already brain damaged from the vaccines?

    If society is to find solutions to problems nothing can be eliminated as a possible cause until it is throughly investigated.

    Has everyone read the warning labels that come with the vaccine bottles?

    I remember as a kid being lined up like cattle at a public school & multi vaxed.

    No consent from me or my mom/dad was given!

    Under those rules I guess anyone can stick a needle into anyone they choose?

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