How Tough Is Washington’s Felony DUI Law?

How tough is Washington’s felony DUI law? In 2017, the Washington State Legislature amended the felony DUI law, making a DUI a felony if there have been three “prior offenses” in a ten year look back period. The previous law had required four prior offenses in the same look back period. Despite this recent change, some have suggested that Washington still has the “most lax felony DUI law in the country”. This perception fueled an attempt during the current legislative session to increase the felony DUI look back period to 25 years. A watered-down version of that proposal, creating a fifteen year look back period, is still trying to make its way through the senate. Critics of the proposal have cited, among other things, the cost of imprisoning the increased volume of offenders and the lack of treatment provisions contained within the bill. Still, the impression that Washington’s felony DUI law is not tough enough remains. It is easy to make grandiose statements about the weakness of the current law, but does actual research bear this out?

Washington’s current felony DUI law

Critics of our current felony DUI law worry that the look back period is too short, and the number of prior offenses required too great. Ultimately, the harshest critics would argue there should be no look back period and even fewer DUI’s in a lifetime to trigger the felony statute. But the look back period and number of priors are only two of the variables to consider when comparing state laws in this area. One also needs to consider the degree of punishment upon conviction and, maybe most importantly, what constitutes a “prior offense”.

Felony DUI in Washington is a Class B felony. If convicted under the “multiple priors” prong of the statute, a person would face a mandatory prison sentence of between 13-17 months. Also, “prior offenses” in Washington are defined much more broadly than simply prior DUI convictions. The current 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 an 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,
• Out of state convictions for the above, and
• Entry into a program of deferred prosecution, in this state or any other, whether successfully completed or not.

Given a more complete look at the full felony DUI statute, how does Washington’s law compare to those of neighboring states?

Felony DUI Laws in other States

Oregon

Oregon has a ten year look back period, same as Washington. Two DUIs within that time period triggers the felony DUI statute or three convictions in that time frame for a combination of DUI, boating under the influence or operating an aircraft under the influence. Unlike Washington, successfully completed diversions and reductions from DUI to other offenses do not count as a prior offense. Also, Oregon’s minimum sentence for felony DUI is 90 days in jail…a far cry from the prison sentence in excess of a year that would be required in Washington.

California

On its surface, California’s current felony DUI is very similar to Washington’s. There is a ten year look back period and three priors must have occurred in that look back period for the DUI to be a felony. A conviction in California would mean a 16 month prison term, also commensurate with Washington’s 13-17 month standard range. But in California, only DUI convictions and “Wet Reckless” convictions (DUIs reduced to Reckless Driving) count as priors. California does not have the broad range of prior offenses that Washington does.

Idaho

Idaho has a ten year look back period but only requires two prior convictions in that ten year period. In Idaho, however, only convictions for DUI trigger the statute. Reductions from DUI, deferrals, and other alcohol related offenses do not count as priors. The penalty for a felony DUI conviction in Idaho is 30 days and only ten of those days must be served in jail.

Montana

In Montana, there is no look back period and a fourth DUI in a lifetime is a felony. A conviction for felony DUI in Montana based upon multiple priors is 13 months. But in Montana, only a DUI conviction counts as a prior offense.

Arizona

Arizona is a state that has a more all-encompassing felony DUI statute in that there are several ways that a first DUI could be a felony. In Arizona, if a person commits DUI and at the time had a suspended driver’s license, was in violation of an ignition interlock order, had been driving on the wrong side of the road or had a passenger under the age of 15 in the car, they could be charged with a felony. But the multiple priors portion of the felony DUI statute in Arizona doesn’t appear to be a significant departure from Washington. In fact, the look back period in Arizona is only seven years. To trigger that statute only two DUI convictions during the look back period are necessary. The penalty for such a conviction would be eight months in jail. And again, like most of the rest of Washington’s neighbors, only a DUI conviction counts as a prior.

Based on the above information, how does Washington’s felony DUI law seem to compare to its neighboring states? Four of the five states have a look back period the same, or shorter, than Washington’s ten year look back period. Washington’s 13-17 month prison sentence upon conviction is essentially the same as California and Montana and significantly greater than the other three states. What really seems to set Washington apart from its neighbors is in what constitutes a prior offense. Most of the states in this comparison require an actual DUI conviction in order to be considered a prior. In Washington, essentially any outcome of a case short of an acquittal, if it was originally charged as DUI will count as a prior. And, there are many offenses that are considered priors that don’t involve a motor vehicle. That is significant.

It certainly appears that Washington doesn’t even have the “most lax” felony DUI law in a six-state region, much less the entire nation. In fact, on the whole, it would seem that Washington’s law is comparatively quite strict and at the very least commensurate with the other state’s in this comparison. And while there may be reasons for and against strengthening the existing law, comparative weakness and laxity are not among them.

A longer analysis of Washington’s neighboring states can be found on my DUI site.