OLYMPIA – As the Legislature moves once again toward imposing tougher penalties for people who repeatedly drive under the influence of alcohol or drugs, it must also consider changing how police determine a driver was smoking pot.
Spokane County had 1,216 DUI arrests last year, County Prosecutor Larry Haskell told the House Public Safety Committee, “and those are only the ones that got caught.”
Although the number of alcohol-related accidents and fatalities are down, there is an increase in the marijuana-related accidents and what law enforcement calls poly-drug DUIs – some combination of alcohol, marijuana, prescription drugs or heroin.
A driver under the influence of marijuana is “an unguided missile that is one intersection away from a direct hit,” Haskell said.
Current Washington law makes the fifth DUI in 10 years a felony, punishable by up to 10 years in prison. The Senate passed a bill unanimously last month that would make the fourth such conviction in 10 years a felony, with a prison sentence of at least 13 months. It’s an idea that has been tried in different forms, but failed, several times in recent years.
“We’re here again,” Sen. Mike Padden, R-Spokane Valley, the sponsor of the bill to make a fourth DUI a felony, told the committee. “We’re never going to give up.”
Dale Panattoni, whose father-in-law was killed by a drunken driver in Yakima in 2014, told the committee it was his third year coming to the Legislature to ask them to increase the penalties. He thought waiting until the fourth DUI to charge a driver with a felony was lenient.
“Once is a mistake. Twice is a pattern,” Panattoni said. “The third time should be a felony.”
Committee Chairman Roger Goodman, D-Kirkland, told Panattoni and other witnesses who had lost a family member to a drunken driver that he hoped this would be the last year they need to lobby for the bill. The committee is expected to approve the bill early next week and send it to the House budget committee.
But testing drivers under the influence of marijuana or other drugs is becoming a problem because there is no easy breath test that can be applied on the side of the road. Determining the level of THC, the psychoactive chemical in marijuana, requires a blood test and Padden has a separate bill to make it easier for law enforcement officers to get those tests.
Current law requires a certified medical technician to draw blood that can be tested for drug levels. But the process often involves taking a suspect to a police station, obtaining a search warrant, then taking the suspect to a hospital for the blood draw.
The amount of time that process takes is often so long that the level of THC in the blood has dropped below the legal limit as it moves into the brain, said Amy Freedheim, a King County senior deputy prosecutor who handles DUI cases.
“We are losing valuable evidence,” Freedheim said. “The jury wants to see what’s in the blood.”
Staff in some hospitals also are refusing to draw blood because it is not being used for medical purposes, said Pam Loginski, of the Washington Association of Prosecuting Attorneys.
A bill that passed the Senate 30-to-19 last month would create a new specialist for law enforcement agencies known as a forensic phlebotomist. That could be an officer or other member of the agency who receives special training to be able to draw blood from a vein, similar to the process used in a physician’s office or a bloodmobile. The blood could only be drawn in a safe and clean location, such as an ambulance at the scene of an accident or in an office in a police station, and only after any needed medical care is provided.
But Sheri Pewitt, of the Washington Association of Criminal Defense Lawyers, said that group opposed the bill as it’s drafted because the training program wouldn’t be overseen by the state Department of Health. The law enforcement agencies could develop some abbreviated training that “puts our citizens in jeopardy” but the bill would protect them from civil liability.
“A blood draw is, in fact, a medical procedure,” Pewitt said, and the fact that the results aren’t being used for medical purposes don’t change the risks.