26.60.100 Implied consent – Suspension of driving privileges.
(1) Any person who operates a motor vehicle within the jurisdiction of the Cowlitz Tribes is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the 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 or any drug or was in violation of RCW 46.61.503.
(2) The test or tests of breath shall be administered at the 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 jurisdiction of the Cowlitz Tribes while under the influence of intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of 21. However, in those instances where the person is incapable, due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample or where the person is being treated in a hospital, clinic, doctor’s office, emergency medical vehicle, ambulance, or other similar facility in which a breath testing instrument is not present or where the officer has reasonable grounds to believe that the person is under the influence of a drug, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(4). The officer shall inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver that:
(a) His or her privilege to drive will be revoked or denied if he or she refuses to submit to the test;
(b) His or her privilege to drive will be suspended or denied if the test is administered and the test indicates the alcohol concentration of the person’s breath or blood is 0.08 or more, in the case of a person age 21 or over, or in violation of RCW 46.61.502, 46.61.503, or 46.61.504 in the case of a person under age 21; and
(c) His or her refusal to take the test may be used in a criminal trial.
(3) Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, 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 there has been serious bodily injury to another person, a breath or blood test may be administered without the consent of the individual so arrested.
(4) Any person who is dead, unconscious, or who is otherwise in a condition rendering him or her incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (1) of this section and the test or tests may be administered, subject to the provisions of RCW 46.61.506, and the person shall be deemed to have received the warnings required under subsection (2) of this section.
(5) If, following his or her arrest and receipt of warnings under subsection (2) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath or blood, no test shall be given except as authorized under subsection (3) or (4) of this section.
(6) If, after arrest and after the other applicable conditions and requirements of this section have been satisfied, a test or tests of the person’s blood or breath is administered and the test results indicate that the alcohol concentration of the person’s breath or blood is 0.08 or more if the person is age 21 or over, or is in violation of RCW 46.61.502, 46.61.503, or 46.61.504 if the person is under the age of 21, or the person refuses to submit to a test, the person’s privilege to operate a motor vehicle within the jurisdiction of the Cowlitz Tribes shall be suspended or denied. The arresting officer shall notify the person of the intention to suspend the person’s driving privileges and shall transmit to the Tribal Court within 72 hours, except as delayed as the result of a blood test, a declaration or sworn report that states:
(a) That the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within the jurisdiction of the Cowlitz Tribes while under the influence of intoxicating liquor or drugs, or both, or was under the age of 21 years and had been driving or was in actual physical control of a motor vehicle while having an alcohol concentration in violation of RCW 46.61.503;
(b) That after receipt of the warnings required by subsection (2) of this section the person refused to submit to a test of his or her blood or breath, or a test was administered and the results indicated that the alcohol concentration of the person’s breath or blood was 0.08 or more if the person is age 21 or over, or was in violation of RCW 46.61.502, 46.61.503, or 46.61.504 if the person is under the age of 21.
(7) The Cowlitz Tribal Court, upon the receipt of a report of the law enforcement officer under subsection (6) of this section, shall suspend or deny such person’s privilege to drive within the exterior boundaries of the Cowlitz Reservation for a period of six months after the date of the alleged violation, subject to review as hereinafter provided.
(8) Upon suspending or denying the privilege to drive of any person, as hereinbefore directed in this section, the Cowlitz Tribal Court shall immediately notify the person involved in writing by personal service or by registered or certified mail of its decision and the grounds therefor, and of his right to a hearing, specifying the steps he must take to obtain a hearing. The person upon receiving such notice may, in writing and within 10 days therefrom, request a formal hearing. The Cowlitz Tribal Court shall schedule a hearing for a date within 30 days of receipt of the request and shall give 10 days’ notice of the hearing to the person requesting the hearing. The scope of the hearing shall cover the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this State while under the influence of intoxicating liquor or any drug or had been driving or was in actual physical control of a motor vehicle within the jurisdiction of the Cowlitz Tribes while having alcohol in his or her system in a concentration in violation of RCW 46.61.503 and was under the age of 21, whether the person was placed under arrest, and:
(a) Whether the person refused to submit to the test or tests upon request of the officer after having been informed that such refusal would result in the revocation of the person’s license, permit, or privilege to drive; or
(b) If a test or tests were administered, whether the applicable requirements of this section were satisfied before the administration of the test or tests, whether the person submitted to the test or tests, or whether a test was administered without express consent as permitted under this section, and whether the test or tests indicated that the alcohol concentration of the person’s breath or blood was 0.08 or more if the person was age 21 or over at the time of the arrest, or was in violation of RCW 46.61.502, 46.61.503, or 46.61.504 if the person was under the age of 21 at the time of the arrest. The sworn report or declaration submitted by a law enforcement officer is prima facie evidence that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within the jurisdiction of the Cowlitz Tribes while under the influence of intoxicating liquor or drugs, or both, or the person had been driving or was in actual physical control of a motor vehicle within the jurisdiction of the Cowlitz Tribes while having alcohol in his or her system in a concentration in violation of RCW 46.61.503 and was under the age of 21 and that the officer complied with the requirements of this section.
The Cowlitz Tribal Court shall order that the suspension or denial either be rescinded or sustained. Any decision by the Tribal Court suspending or denying a person’s driving privilege shall be stayed and shall not take effect while a formal hearing is pending or during the pendency of a subsequent appeal to the Cowlitz Tribal Appellate Court.
(9) A suspension imposed under this section, other than as a result of a breath or blood test refusal, shall be stayed if the person is accepted for deferred prosecution as provided in CTC 26.25.110(2)(a) for the incident upon which the suspension is based. If the deferred prosecution is terminated, the stay shall be lifted and the suspension reinstated. If the deferred prosecution is completed, the stay shall be lifted and the suspension canceled.
(10) If the suspension or denial is sustained by the Tribal Court in the formal hearing, the person whose privilege to drive is so affected shall have the right to file a Notice of Appeal with the Cowlitz Tribal Court.