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WPIC 93.04 Driving While License Suspended or Revoked—Second Degree—Elements

11A WAPRAC WPIC 93.04Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 93.04 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part XI. Crimes Involving Operation of Motor Vehicles
WPIC CHAPTER 93. Driving While License Suspended or Revoked
WPIC 93.04 Driving While License Suspended or Revoked—Second Degree—Elements
To convict the defendant of the crime of driving while license suspended or revoked in the second degree, each of the following five elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant drove a motor vehicle;
(2) That at the time of driving an order was in effect that suspended or revoked the defendant's driver's license or driving privileges;
(3) That the order was entered by reason of
[(a)] [a conviction of a felony in the commission of which a motor vehicle was used] [or]
[(b)] [a previous conviction for violating RCW 46.20.342 [, relating to driving while license suspended or revoked in the second degree]] [or]
[(c)] [a notice received by the Department of Licensing from a court or diversion unit as provided by RCW 46.20.265 [, relating to a minor who has committed, or who has entered a diversion unit concerning an offense relating to alcohol, legend drugs, controlled substances, or imitation controlled substances]] [or]
[(d)] [a conviction for violating RCW 46.20.410 [, relating to the violation of restrictions of [an occupational driver's license] [a temporary restricted driver's license] [or] [an ignition interlock driver's license]]] [or]
[(e)] [a conviction for violating RCW 46.20.345 [, relating to the operation of a motor vehicle with a suspended or revoked license]] [or]
[(f)] [a conviction for violating RCW 46.52.020 [, relating to duty in case of injury to or death of a person or damage to an attended vehicle]] [or]
[(g)] [a conviction for violating RCW 46.61.024 [, relating to attempting to elude pursuing police vehicles]] [or]
[(h)] [a conviction of RCW 46.61.212(4) [, relating to reckless endangerment of emergency zone workers]] [or]
[(i)] [a conviction for violating RCW 46.61.500 [, relating to reckless driving]] [or]
[(j)] [a conviction for violating RCW 46.61.502 or 46.61.504 [, relating to a person [driving] [being in actual physical control] while under the influence of intoxicating liquor or drugs]] [or]
[(k)] [a conviction for violating RCW 46.61.520 [, relating to vehicular homicide]] [or]
[(l)] [a conviction for violating RCW 46.61.522 [, relating to vehicular assault]] [or]
[(m)] [a conviction for violating RCW 46.61.527(4) [, relating to reckless endangerment of roadway workers]] [or]
[(n)] [a conviction for violating RCW 46.61.530 [, relating to racing of vehicles on highways]] [or]
[(o)] [a conviction for violating RCW 46.61.685 [, relating to leaving children in an unattended vehicle with motor running]] [or]
[(p)] [a conviction for violating RCW 46.61.740 [, relating to theft of motor vehicle fuel]] [or]
[(q)] [a conviction for violating RCW 46.64.048 [, relating to attempting, aiding, abetting, coercing, and committing crimes]] [or]
[(r)] [an administrative action taken by the Department of Licensing under RCW Chapter 46.20] [or]
[(s)] [a conviction for violating (insert particular local law, ordinance, regulation, resolution; see Note on Use)[, relating to (insert brief description of offense)]] [or]
[(t)] [a finding that a person has committed a traffic infraction under RCW 46.61.526 and suspension of driving privileges pursuant to RCW 46.61.526(4)(b) or (7)(a)(ii) [relating to negligent driving second degree, vulnerable user victim]];
(4) That at the time of driving the defendant was not eligible to reinstate his or her driver's license or driving privileges; and
(5) That the driving occurred in the [State of Washington] [City of ] [County of ].
If you find from the evidence that elements (1), (2), (4), and (5), and any of the alternative elements [(3)(a),] [(3)(b),] or [(fill in any other alternatives used in element (3))] have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives [(3)(a),] [(3)(b),] or [(fill in any other alternatives used in element (3))] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if after weighing all the evidence you have a reasonable doubt as to any one of elements (1), (2), (3), (4), or (5), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For the related jury interrogatory, see WPIC 93.05 (Driving While License Suspended or Revoked—Second Degree—Special Verdict Form). For any case in which substantial evidence supports only one of the alternatives in element (3), revise the instruction to remove references to alternative elements following the format set forth in WPIC 4.21 (Elements of the Crime—Form).
The instruction is drafted to include references to particular statutes, even though this is not usually the preferable practice. The RCW citations are included here in order to parallel the language found in most DOL orders, which generally state the grounds for suspension/revocation in terms of a violation of a particular RCW citation, rather than as a conviction of a particular named offense. Use the bracketed “relating to” phrase following the RCW citation when doing so will aid in juror understanding. The instruction may need to be modified for cases in which the DOL order is stated other than with a bare RCW citation.
Use paragraph (s) when the DOL order is based on a “local law, ordinance, regulation, or resolution of a political subdivision of this state, the federal government, or any other state, of an offense substantially similar to a violation” of one of the other listed offenses. RCW 46.20.342(1)(b). Paragraph (s) should be included only if the judge has first determined that the local law is substantially similar to one of the other listed offenses. Paragraph (s) should be repeated for each individual local law violation that is involved in a particular case.
In element (5), select from among the bracketed terms depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction).
If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See WPIC 4.20 (Introduction) and WPIC 190.10 (Special Verdict Form—Jurisdiction).
COMMENT
RCW 46.20.342(1)(b) has been frequently amended (2004, 2008, 2010, and 2011) to include violations of license restrictions and additional crimes. In 2010, the Legislature expanded the crime to include reckless endangerment of emergency zone workers. Laws of 2010 Chapter 252, § 6 (effective January 1, 2011). In 2011, the Legislature expanded the crime to include suspension relating to the committed infraction, negligent driving 2, vulnerable user victim. Laws of 2011, Chapter 372, § 2 (effective July 1, 2012).
The Legislature further amended RCW 46.20.342(1)(b) to provide: “A person is not eligible to reinstate his or her driver's license or driving privilege if the person is eligible to obtain an ignition interlock driver's license but did not obtain such a license.” Laws of 2010, Chapter 269, § 7 (effective July 1, 2012).
The form of this instruction is consistent with the holding in State v. Smith, 155 Wn.2d 496, 120 P.3d 559 (2005), that the State must prove the underlying basis for the suspension.
While directly applicable to cases involving third degree driving with license suspended/revoked, the holding of City of Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004), may also apply to certain cases of the offense in the second degree if there has been no preceding ability to request an administrative hearing from the Department of Licensing. In City of Bremerton v. Hawkins, 155 Wn.2d 107, 117 P.3d 1132 (2005), the Washington Supreme Court held that a defendant whose license was mandatorily revoked following a conviction of minor in possession of drugs was not required to have a separate pre-suspension hearing.
[W]ith all mandatory license revocations based on criminal convictions, there is a significant government interest in public safety.
As in [City of Redmond v. Bagby, 155 Wn.2d 59, 117 P.3d 1126 (2005)], although a driver's license is a substantial private interest, erroneous deprivation is unlikely because the defendant personally appears before the judge for imposition of the suspension and there is a significant government interest in the license revocation of convicted criminals. [Citation omitted.] Thus, a conviction that results in a mandatory license suspension for a minor, under RCW 46.20.265, satisfies constitutional due process requirements without a separate Department hearing.
City of Bremerton v. Hawkins, 155 Wn.2d at 110–11.
See the discussion at the Comments to WPIC 93.06 and WPIC 93.07.
“Old Chief” stipulations. In practice, the parties often stipulate to the existence of a prior conviction. For a discussion of “Old Chief” stipulations, see the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief” Stipulation)).
Not a lesser included offense. DWLS 2 is not a lesser included offense of DWLR 1. State v. Jasper, 158 Wn.App. 518, 538 n.8, 245 P.3d 228 (2010), as amended on denial of reconsideration December 1, 2010, affirmed, 174 Wn.2d 96, 271 P.3d 876 (2012); see also State v. Smith, 155 Wn.2d 496, 503–04, 120 P.3d 559 (2005). However, the degrees of DWLS are “lesser degree offenses” as contemplated by RCW 10.61.003, and may under some circumstances require additional instructions to the jury. State v. Jasper, 158 Wn.App. at 538 n.8. See WPIC 4.11 (Lesser Included Crime or Lesser Degree). Driving without a license, RCW 46.20.005, is expressly a lesser included offense of DWLS 1, 2, or 3. See State v. Hancock, 190 Wn.App. 847, 360 P.3d 992 (2015).
[Current as of February 2020.]
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