Keeping Your Driver’s License

There are many crimes that can cost you not only your freedom, future and finances but also your privilege to drive. These offenses are largely outlined in RCW 46.20.285, which was recently updated and now reads as follows in relevant part:

“The department shall revoke the license of any driver for the period of one calendar year unless otherwise provided in this section, upon receiving a record of the driver’s conviction of any of the following offenses, when the conviction has become final:

(1) For vehicular homicide….;

(2) Vehicular assault…;

(3) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug….;

(4) Any felony where the sentencing court determines that in the commission of the offense a motor vehicle was used in a manner that endangered persons or property;

(5) Failure to stop and give information or render aid as required under the laws of this state….;

(6) Perjury or the making of a false affidavit or statement under oath to the department under Title 46 RCW or under any other law relating to the ownership or operation of motor vehicles;

(7) Reckless driving upon a showing by the department’s records that the conviction is the third such conviction for the driver within a period of two years.”

Those portions in bold went into effect January 1, 2022, but were the product of legislation that passed in March of 2020 called House Bill 2066. Prior to HB 2066, the law stated that anyone convicted of any felony involving a motor vehicle automatically lost the right to drive a car for at least a year. But, following growing bipartisan awareness that the collateral consequences of convictions were disproportionate to the harms for which the convicted were responsible, HB 2066 empowered Courts with both the privilege and the responsibility of ensuring that DOL licenses suspensions following felony motor vehicle convictions were the result of a public safety concern that justified such a destabilizing consequence. As the Second Substitute Bill Report Explained:

“There are circumstances when a felony has nothing to do with the vehicle, and in those cases, there is no public safety reason for revoking a person’s driver’s license. These people need to be able to go to work and take their kids to daycare.”

HOW IS THIS BEING APPLIED

In many places, awareness of these new restrictions on taking licenses away is only now being realized, and courts sometimes struggle to determine whether or not a license suspension is warranted or not.

For example, I recently represented a woman convicted of theft of a motor vehicle. The allegation was that she stole a car from the owner’s driveway while they were watching TV inside their home. When the owners saw the car was being taken, they ran outside and saw my client scrape the side of the car against the car port as she was pulling away, causing a paint transfer before speeding away from the property.

At sentencing, the State asked the Court to find that by stealing the car, and driving it from the owner’s property in the way my client had, my client had committed a felony using a motor vehicle that endangered people or property.

I argued that RCW 46.20.285(4) did not apply to the facts of this case because the statute requires the car to be used in such a way as to endanger property other than the car stolen, and here it was only alleged that car was stolen in such a way as to have received damage to the car itself.

Analyzing RCW 46.20.285, it is clear that RCW 46.20.285(1)(2)(3)&(7) – license suspension for vehicular homicide, vehicular assault, driving under the influence and reckless driving three times in two years – are all rooted in the Legislature’s underlying desire to protect the public from drivers whose conduct is demonstrably dangerous to human life. RCW 46.20.285(5) – hit and run – is similarly concerned with preserving people’s physical safety by creating an obligation that those who are involved in motor vehicle accidents do not leave the scene of said accident without first providing aid to the injured. Additionally, and more commonly, RCW 46.20.285(5) creates an obligation that those who use a motor vehicle be responsible enough to carry and exchange the requisite information to make a fellow motorist whole in the advent of an accident on the road.

But what about RCW 46.20.285(4)? How does the Court determine that “in the commission of the offense a motor vehicle was used in a manner that endangered persons or property”?

With some offenses, this is self-evident. Eluding a pursuing police officer necessitates the State establish the defendant drove in a reckless manner, for example.

But a person commits the crime of theft of a motor vehicle simply by stealing a motor vehicle. Often theft of a motor vehicle is achieved by first damaging the vehicle – smashing a window or punching an ignition, for example. But the fact that the vehicle stolen was damaged in the process of stealing it is insufficient by itself to satisfy RCW 46.20.285(4) because the vehicle itself must be used in a way that endangers property per the plain language of the statue.

So in the case afore referenced, without evidence of any damage to the carport as a result of the car grazing it during the theft, nor any claims of a reckless flight from the scene, RCW 46.20.285(4) should not apply.

THE DANGERS OF AN OVERLY BROAD APPLICATION OF RCW 46.20.285(4)

RCW 46.20.285(4) asks the Court to determine whether the vehicle was used in a such a way that endangered people or property. Broadly speaking, any auto crime could fall into this category simply by virtue that a crime is committed and thus both law enforcement and private civilians will be provoked to try and stop it. For example, on May 30, 2022, a then Republican candidate for the Pierce County Council, allegedly shot a suspected car thief who had taken his vehicle and after an investigation was deemed innocent of any wrong doing. The news is filled with such stories across America and thus one could easily argue that the crime of stealing a car in itself presents an elevated risk of the vehicle owner using force to preserve custody of their property and thus endangering themselves and the defendant in the process. Thus, all auto thefts, per a broad application theory, endanger people if not property.

What if my client had not grazed the carport column in her flight from the theft but had erroneously believed the stolen vehicle required diesel to drive when in fact gasoline was required. Suppose she had subsequently put the wrong fuel into the engine and subsequently damaged it. Would her conduct be sufficient to satisfy the endangerment to property prong?

Similarly, it could be argued that by removing property contained within a stolen vehicle in the process of an auto theft “endangers” the property because the chances of it being recovered by the lawful owner are diminished by the Defendant’s actions. Recently a former Pierce County Council Member – Tim Farrell – was the victim of an auto theft. Inside his vehicle was reportedly the ash remains of his deceased father. If these remains in an urn constitute “property” or “people” does the legislature intend for their removal from the vehicle to satisfy the danger to people or property prong of the statute? What if we were just talking about a nice set of sunglasses stolen in the process? What about the gas in the motor vehicle itself? By burning gas in the process of stealing the car, the owner’s property is being “endangered.”

This is why Courts must narrowly tailor these cases to comport with what the Legislature is clearly trying to achieve. What the Legislature is trying to do is keep people off the road whose use of a motor vehicle constitutes a threat to public safety and property…independent of the crime itself. Simultaneously, the Legislature is intentionally attempting to preserve drivers’ licenses for those whose use of a motor vehicle whilst committing a crime did not raise public safety or private property concerns.

Defendants and their counsel should therefore be more aggressive in negotiating and arguing the DOL consequence to felony conviction