In State v Villela Oct 17, 2019 the Washington State Supreme Court unanimously agreed that the Washington law requiring all DUI arrests result in impounding of the vehicle is unconstitutional.   At issue in Villela was the fact that when a vehicle is impounded, the officer must conduct an inventory search to catalog the contents prior to releasing it to the tow company.  This protects the officer, the tow company, and the defendant from theft and allegations of theft.  

In Villela, the inventory search turned up strong evidence of drug sales and the defendant has cocaine on his person.  Villela was charged with felony possession with intent to deliver.   At the trial court, the judge agreed the search violated the State Constitution Art. 1 Sec. 7 and suppressed the fruits of the inventory search.   In affirming that suppression, the State Supreme Court concluded that "an impound is lawful under article I, section 7 only if, in the judgment of the impounding officer, it is reasonable under the circumstances and there are no reasonable alternatives. Since the officer did not make that judgment, the impound was unlawful under our state constitution, and the trial court properly suppressed the fruits of the seizure."   

Having struck down RCW 46.55.360, we revert to having officers decide in each case whether to impound, and whether any reasonable alternatives to impound are available.  The court identified only two broad categories for when an officer may reasonably impound a vehicle:

 (1) as evidence of a crime or; (2) when it is reasonable under the circumstances.

Once the officer has decided to impound, the court evaluates whether reasonable alternatives to impound existed.  In Villela, the defendant provided the name of a nearby friend and said they lived nearby.  But because impound was mandatory, the officer never called the number.   

Villela puts law enforcement back into the psychic business.  If officers impound the vehicle, the agency risks liability for the impound costs and the loss of use of the vehicle if a judge doesn't agree.  If the officer doesn't impound the vehicle, the agency risks liability for having the impaired driver hurt someone.  That is what led to Hailey's law in the first place.  In the Hailey French case from 2007--a jury concluded the officer should have done more to prevent a driver from going back to her car and driving after her arrest for DUI.  The impaired driver was a repeat offender but was driven home and given her keys back--with instructions not to drive until sober.   The jury awarded $5.5 million.    After the Hailey French case, repeat DUI drivers are now under a mandatory arrest requirement--that helps, but it still leaves a large number of "first time" offenders.  (out-of-state, tribal, and other DUI convictions are often not known to the arresting officer).   Because repeat offenders are going to see a judge before they drive again, officers can focus on first-time DUI arrests who will likely be back on the street within hours of their DUI stop.  In many cases, those drivers will still be impaired.   Prosecutors and law enforcement will be working to develop policies and training to assist law enforcement in making reasonable assessments regarding impounding DUI suspect vehicles.