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ORD 83-14 AMENDING MODEL TRAFFIC ORDINANCE ORDINANCE NO. 83- 14 AN ORDINANCE AMENDING ORDINANCE 81-36 RELATING TO THE MODEL TRAFFIC ORDINANCE PROVISIONS REGARDING DRIVING WHILE UNDER THE INFLUENCE AND OPEN CONTAINERS AND DRINKING WHILE DRIVING. WHEREAS, the 1983 session of the State legislature enacted amendments to the Model Traffic Ordinance regarding offenses relating to drinking and driving; and the City Council desires to enact these new provisions by ordinance; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF WINSLOW DO ORDAIN AS FOLLOWS: Section 1. Section 1A of Ordinance 81-~ is hereby amended to read as follows: Section 1. MODEL TRAFFIC ORDINANCE A. ADOPTION BY REFERENCE 1. The "Washington Model Traffic Ordinance," Chapter 46.90 RCW, heEeinafter referred to as the "MTO," and RCW 46.52.088, 46.61.072, 46.61.202, 46.61.215, 46.61.261, 46.61.264, 46.61.266, 46.61.269, 46.61.520, 46.61.540, 46.61.606, 46.61.608, 46.61.614, 46.61.690, 46.61.017, 47.36.130, and the Laws of 1983, Reg. Session, I Ch. 165, section 28, p. 30 are hereby adopted by reference as and for the traffic ordinance of this City as if set forth in full herein except as provided in Section 1, paragraph B and Section 2. Section 2. Section 1B of Ordinance 81-36 is hereby amended to read as follows: B. PERSONS UNDER INFLUENCE OF INTOXICATING° LIQUOR OR ANY DRUG - CHEMICAL TESTS - ANALYSIS - EVIDENCE - PENALTIES - 1. A person is guilty of driving while under the influence of intoxicating, liquor or any drug if he drives a vehicle within the City of Winslow while: (a) He has 0.10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood, or other bodily substance made under the provisions of this section; or (b) He is under the influence of or affected by intoxi- cating liquor and any drug; or Ordinance 83-14 Page2 (c) He is under the combined influence of or affected by intoxicating liquor and any drug. The fact that any person charged with a violation of this subsection is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this subsection. 2. A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if he has actual physical control of a vehicle within the City of Winslow while: (a) He has 0.10 percent of more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood, or other bodily substance made under the provisions of this section; or (b) He is under the influence of or affected by intoxicating liquor or any drug; or (c) He is under the conlbined influence of or affected by intoxicating liquor and any drug. The fact that any person charged with a Violation of this subsection is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this subsection. No person may be convicted under this subsection if, prior to being pursued by a .law enforcement officer, he has moved the vehicle safely off the roadway. 3. Any person who operates a motor vehiCle'~ithin the City of Winslow is deemed to have given consent, subject to the provisions of this section, to a chemical test or tests of his or her breath or blood for the purpose of determining the alco- holic content of his or her blood if arrested for any offense where, at the time of arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered atthe -2- Ordinance 83-14 Page 3 direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within the city while under the influence of intoxicating liquor. The officer shall inform the person of his or her right to refuse the test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided elsewhere in this section. The officer shall warn the the driver that his or her privilege to drive will be revoked or denied if he 0r she refuses to submit to the test. The officer shall warn the driver that his or her refusal to take the test may be used against him or her in any subsequent criminal trial. Unless the person to be tested is unconscious, the che- mical test administered shall be of the breath only. If an indivi- dual is unconcious or under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as pro- vided in Section 2, Chapter. (SB 3106), Laws of 1983, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which another person has been injured and there is a reasonable likelihood that such other person may die as a result of injuries sustained in the accident, a breath or blood test may be administered without the consent of the individualtso arrested. In such circumstances, the provisions of subsections (4) and (5) of this section shall not apply. 4. Any person who is dead, unconcious, or who is other- wise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by subsection (3) of this section and the test or tests may be administered, subject to the provisions hereof and the person shall be deemed to have received the warnings required under subsection (3) of this section. Ordinance 83- 14 Page 4 5. If, following his or her arrest and receipt of warnings under subsection ~3) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a chemical test of his of her breath, no test shall be given except as authorized under subsection (3) or (4) of this section. The law enforcement officer shall forward to the department of licen- sing a sworn report that he has reasonable grounds to believe that the arrested person had been driving or was in actual physical control of a motor ~ehicle within the city under the influence of intoxicating liquor and that the person had refused to submit to the test upon the request of the law enforcement officer after being informed that such refusal would result in the revocation or denial of his privilege to drive. 6. Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or any drug, if the amount of alcohol in the person's blood at the time alleged as shown by chemical analysis of his blood, breath or other bodily substance is less that 0.10 percent by weight of alcohol in the person's blood, it is evidence that may be consi- dered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any dru~., Percent of weight of alcohol in the blood shall be based upon milligrams of alcohol per one hundred cubic centimeters of blood. The foregoing provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor or any drug. 7. Chemical analysis of the person's blood or breath to be considered valid under the provisions of this section ~f' RCW 46.61,502 or 46.61,504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. -4- Ordinance 83-14 Page 5 8. When a blood test is administered in accordance with this section or under the provisions of 46.20,308, the withdrawal of blood for the purpose of determining its alcoholic content may be performed only by a physician, a registered nurse, or a qua- lified technician. This limitation shall not apply to the taking of breath specimens. 9. The person tested may have a physician or a qualified technician, chemist registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. 10. The refusal of a person to submit to a test of the alcoholic content of his blood under subsection (3) of this section and RCW 46.20,308 is admissible into evidence at a sub- sequent criminal trial without any comment and with a jury ins- truction, where applicable, that there shall be no speculation as to the reason for the refusal and that no inference is to be drawn from the refusal. 11. Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. 12. Penalty. Every person who is convicted of a violation of the provisions of this section~hall be punished by imprisonment for not less than twenty-four consecutive hours nor more than six months and by a fine of not more than Five Hundred Dollars ($500.00). The convicted person shall, in addition, be required to complete a course at an alcohol information school approved by the ~e~part- ment of Social and ~ealth Services or more intensive treatment in a program approved by the D~partment of Social and ~.ealth Services, as determined by the court. A diagnostic evaluation and treatment -5- Ordinance 83-14 Page 6 recommendation shall be prepared under the direction of the court by an alcoholism agency approved by the D~partment of Social and Health Services or a qualified probation department approved by the ~epartment of Social and Health Services. A copy of the report shall be forwarded to the Department of Licensing. Based on the diagnostic evaluation, the court shall determine whether the convicted person shall be required to complete a course in an alcoholic in- formation s~hool approved by the Department of Social and ~ealth Services or more intensive treatment in a program approved by the Department of Social and Health Services. Twenty-four consecutive hours of the jail sentence shall not be suspended or deferred unless the judge finds that the imposition of the jail sentence will pose a risk to the defendant's physical or mental well-being. Whenever the mandatory jail sentence is suspended or deferred, the judge must state, in writing, the reason for granting the supension o~eferral and the facts upon which the suspension or deferral is based. The court may impose conditions of probation that may include nonrepetition of the offense, alcohol or drug treatment, supervised probation, or other conditions which may be appropriate. On a second or subsequent conviction for a violation of the provisions of this section within a five-year period, a person shall be punished by imprisonment for not less than seven days nor more than six months, the first 48 hours of which shall be served consecutively, and by a fine of not more than five hundred dollars ($500.00). The jail sentence shall not be suspended or deferred unless the judge finds that the imposition of the jail sentence will pose a risk to the defendant's physical or mental well-being. Whenever the mandatory jail sentence is suspended or deferred, the judge must state, in writing, the reason for granting the~suspension or deferral and the facts upon which the suspension or deferral is based. If at the time of a second or subsequent conviction, the driver is without a license or permit because of a previous suspension or revocation, the minimum mandatory sentence shall be ninety days in jail and a two hundred dollar' ($200.00) fine. The penalty so imposed shall not be suspended or deferred. -6- Ordinance 83-14 Page 7 The person shall, in addition, be required to complete a diagnostic evaluation by an alcoholism agency approved by the D~epartment of Social and Health Services or a qualified probation department approved hy the Department of~ocial and Health Services. The report shall be forwarded to the!Department of Licensing. If the person is found to have an alcohol or drug problem requiring treatment, the person shall complete treatment at an approved al- coholism treatment facility or approved drug treatment center. In addition to any nonsuspendable and nondeferrable jail sentence required by the preceding paragraph relating to a second or subsequent conviction, the court shall sentence a person to a term of imprisonment not exceeding one hundred and eighty days and shall suspend but shall not defer the sentence for a period not exceeding six months. The suspension of the sentence may be conditioned upon nonrepetition, alcohol or drug treatment, supervised probation, or other conditions that may be appropriate. The sentence may be imposed in whole or in part upon violation of condition of suspension during the suspension period. Section 3. Severability Clause. If any provision of this ordinance or its application to any persons or circumstances is held invalid, the remainder of the ordinance, or the application of the provision to other persons or circumstances is not affected. Section 4. Effective Date. This ordinance shall take effect five days after the posting of this ordinance in a manner pro- vided by law. PASSED BY THE CITY COUNCIL this 3rd day of NOVEMBER 1983. ATTEST: DONNA JE~N~I BUXTON Clerk/Treasurer A Mayor -7- Ordinance 83-14 Page 8 Approved as to form: THO~S M. WALSH City Attorney I do hereb~ ertify thi~ Ordinance was signed by the Mayor /d~" day of~~~983, at the Ferry Terminal, Chamber of Commerce, City Hail. Effective ~-~.~f{}/5/~ ' Clerk/Treasurer