Despite recent changes to strengthen Washington’s felony DUI laws, two state legislators are introducing new legislation that will make these laws even tougher. Citing a belief that Washington’s DUI laws are too lax compared to the rest of the country, State Senators David Frokt and Mike Padden want to decrease the number of DUI convictions it would take before the felony DUI status kicks in and to eliminate all together any look back period. Their positions beg the question, “How tough is Washington’s Felony DUI Law?”
A recent article discussing this issue was published by MyNorthwest. The article, “Two lawmakers push to toughen Washington DUI laws”, stated, without citing any evidentiary support or research, that of the “46 states” that have a felony DUI law, Washington has “the most lax felony DUI law in the country.”
Is this really true?
Washington’s current felony DUI law
Enacted in 2017, RCW 46.61.502(6) makes a fourth “prior offense” in a ten-year period a Class B felony, punishable by up to ten years in prison. The convictions that would satisfy the statute during that ten-year period are not solely limited to DUIs but any conviction that would be considered a “prior” under the DUI statute. Currently the list of “prior offenses” includes:
- Driving or being in physical control of a motor vehicle while under the influence of drugs and/or alcohol,
- Reckless Driving, Reckless Endangerment, and Negligent Driving in the First Degree if reduced from the original charge of DUI or Physical Control,
- Operating a vessel under the influence of drugs or alcohol OR recklessly operating a vessel if reduced from operating a vessel under the influence,
- Operating an aircraft under the influence OR recklessly operating an aircraft if originally filed as operating under the influence,
- Operating a non-highway vehicle under the influence,
- Operating a snow mobile under the influence,
- Vehicular Assault,
- Vehicular Homicide,
- Certain similar out of state convictions, and
- Entry into a program of deferred prosecution, in this state or any other, whether successfully completed or not.
That means, as currently constructed, the felony DUI law would apply for anyone who is currently arrested for DUI and has any of the above three “prior offenses” in the ten previous years. Those priors would be considered from the dates of incident. Another way to be charged with a felony DUI is if a person who is arrested for a current DUI has ever had a drug or alcohol related DUI related Vehicular Assault of Vehicular Homicide conviction. That prong of the current felony DUI law, however, is not what is under fire here.
A conviction for Felony DUI is a seriousness level four offense and each prior that was considered as an element of the crime would be part of the individual’s offender score when determining his or her presumptive sentencing range. That means, for example, that a person convicted of Felony DUI, who has no other felony history and three previous DUI related “priors” in ten years, would be looking at a mandatory prison sentence of between 13 and 17 months. If that individual has other scorable felony history, that range would increase.
Comparative Analysis of Washington’s Felony DUI law versus Other States
I will have to admit up front that I haven’t had the time to do an exhaustive analysis of all 46 states vaguely sub-referenced in the above-mentioned article. It would seem interesting to at least compare Washington’s felony DUI law with those of some of its geographical neighbors. Let’s start with Oregon, California, Arizona, Idaho and Montana.
In Oregon, a person is considered to have committed a Class C felony if they are convicted of DUI and have two previous DUI convictions in a ten-year period or three previous convictions in a ten-year period for the combination of DUI, boating or operating an aircraft under the influence. Once a person is convicted of felony DUI, the look back period is eliminated and any future DUI would be a felony. A person convicted of felony DUI faces a minimum of 90 days of incarceration. At a glance, Washington’s current felony DUI law appears to be much tougher than its counterpart in Oregon.
While Oregon’s look back period of ten years only requires two prior “DUI” convictions, it doesn’t have the broad array of prior offenses that would trigger the statute. Thus, charges that were reduced from DUI, successfully completed diversions, operating non-vehicles under the influence etc. would not cause a person in Oregon to run afoul of the felony statute. And the biggest difference would actually appear to be the penalty. In Washington, at a bare minimum, a person convicted of felony DUI under the “prior offenses” prong would be looking at no less than a 13-month prison term. Oregon’s minimum for the “same” crime is only 90 days. That is less than a conviction for a third DUI offense in Washington. Tougher Felony DUI Statute: Washington
The state of California’s felony DUI law is very similar to Washington’s current law. The felony charge in California, like Washington, is triggered at fourth offense within a ten-year period. The sentence upon a conviction for felony DUI would be 16 months in prison. That seems commensurate with Washington’s standard sentencing range of 13-17 months. Where the two statutes appear to diverge is with respect to what constitutes a prior offense. In California, only a previous DUI conviction, a DUI reduced to a Reckless Driving (Known as a “Wet Reckless” in California) or an out of state DUI conviction will count as a prior offense. That is a far cry from the broad range of prior outcomes that will constitute a prior offense in Washington.
So, while the look back range is the same in both states (ten years) and the penalty upon a first felony DUI conviction are similar (about 16 months) there is a very real difference in terms of the number of events that could occur in Washington that could turn a simple DUI into a felony. As a result…Tougher Felony DUI Statute: Washington
Where Washington came out ahead with respect to the overall severity of its felony DUI law with respect to Oregon and California, it may be a closer call with respect to Arizona. For starters, Arizona appears to have a broader range of circumstances that could lead to felony DUI convictions for individuals who have no prior DUI related incidents. For example, those who are arrested for DUI in Arizona and at the time were either driving on a suspended license, driving on the wrong side of the road, in violation of an existing IID (Ignition Interlock Device) requirement, or had a minor under the age of 15 in the car, can be charged with a felony. For its, “multiple convictions” statute, Arizona actually has a shorter look back period than Washington, seven years as opposed to ten, but the felony DUI law is triggered with only two prior offenses. However, in Arizona, “prior offenses” are only prior actual DUI convictions. Washington’s list of prior offenses is still extensively broader than Arizona’s.
There is also a significant difference in terms of potential jail time. The jail sentence in Arizona for felony DUI would be four months for the offenses listed in this paragraph other than the case where there is a minor in the vehicle. That offense merely tracks with the misdemeanor DUI statute. For a fourth conviction in seven years, the jail penalty is eight months.
It’s difficult to compare Washington and Arizona’s felony DUI statutes. Arizona is without question tougher on those who commit first time DUIs while on a suspended license, while driving on the wrong side of the road, without a required IID or with a minor in the vehicle. It has a shorter look back period and makes a third DUI in seven years a felony. But Washington still has that extensive list of “priors” and the 13-17-month standard range is greater than the eight month jail term in Arizona for a similar charge. Because there are more ways in which a person can attract a felony DUI in Arizona, despite having no criminal history, I have to say…Tougher Felony DUI Statute: Arizona
Like Arizona, Idaho’s multiple conviction DUI statute only requires two prior convictions in the look back period to trigger the statute. Unlike Arizona, the look back period is ten years. It also does not have the multiplicity of ways that a person could be charged with a felony upon a first offense. The mandatory penalty upon conviction for felony DUI in Idaho is 30 days, only ten days of which must be served in jail. There also doesn’t appear to be any sort of escalator clause for additional mandatory jail time for subsequent felony DUI convictions. Finally, like most of the other states we are reviewing here, only actual convictions for DUI count as prior.
When you compare the Idaho statute to Washington’s, one clear difference is that only two priors with ten years are required to trigger the statute as opposed to Washington’s three. The penalty, however, for a felony DUI conviction pales in comparison to the penalty in Washington for a third DUI conviction with seven years (10-30 days of jail in Idaho versus 90-120 days in jail followed by four to five months of house arrest in Washington). And again, only DUI convictions count as priors in Idaho as opposed to multiplicity of events/offenses in Washington. Idaho may only require two priors within the same look back period but in this case…Tougher Felony DUI Statute: Washington
Montana’s felony DUI statute is fairly straight forward. Like Washington, a fourth DUI will be considered a felony. Also, like Washington, the minimum jail sentence for a first time felony DUI conviction based upon multiple priors is 13 months. Montana, however, has no look back period. That means regardless when the priors occurred, the fourth DUI will be considered a felony. On the other hand, for it to count as a prior offense in Montana, the conviction must be for DUI. Reduced charges or dismissals based upon deferred judgments will not count as priors. This one really boils down to which component is seen as more severe, Montana’s lack of a look back period or Washington’s extensive list of “prior offenses. Reasonable minds could differ on this one…Tougher Felony DUI Statute: It’s a Tie
Washington does not have the laxest felony DUI law of any of the 46 states that currently have similar statutes. A review of just other western states shows that Washington’s felony DUI laws are on par with, if not more severe than, that of its neighbors. While some of the states we have reviewed have a longer look back period or require fewer priors to trigger the felony statute, Washington’s punishment upon conviction is, in most cases, significantly more severe. Also, the fact that Washington’s list of “prior offenses” is vastly more inclusive cannot be overlooked. It is that list of “priorable” offenses that really sets Washington’s felony DUI statute apart from the others we have looked at. Of the six states, only in Washington could a person be charged with a felony DUI based upon prior convictions despite never having gotten behind the wheel of a car with alcohol in their system. There are also other factors to consider, such as prosecutorial standards and discretion when choosing whether to file a felony DUI and the state’s overall pattern of enforcement. But these factors are more difficult to discern or quantify.
The point of this article isn’t to suggest that our felony DUI law is too strict. That is up to society through the acts of its legislature and reasonable minds can certainly differ. It is to point out the danger of the simple statement that Washington has “the most lax felony DUI law in the country” made in the MyNorthwest article when it seems clear that the author did absolutely no research to challenge the hypothesis. Our state legislature will certainly continue to wrestle with how severe our DUI laws should be. But before acting, it should know the truth behind how our current laws truly compare to those of other states. Again, this article only reviewed how Washington’s felony DUI laws compared to its closest neighbors. I would, however, suggest that it will likely compare just as favorably to those of other states around the country. Nevertheless, I would not state that conclusion as an absolute certainty without first having done the research.