Take Immediate Action
Request a Hearing
The DoL must also serve you notice in writing your right to a hearing, specifying the steps he or she must take to obtain a hearing. This is typically achieved by the arresting officer giving you hearing request form and this is TIME SENSITIVE. YOU only have seven (7) DAYS from the date of the arrest to make the request and the request MUST be timely. Once again, you MUST take immediate action and seek experienced DUI counsel to guide you through the request procedure because the manner in which the hearing is requested can make the difference between no loss of your license and a suspension or revocation.
Your License Will No Longer be Punched
The law no longer authorizes the police officer to mark your Washington state driver's license or permit to drive, by punching a hole in it. While this used to be the case, it is now unlawful for the police officer to mark, or destroy or invalidate your license in any manner. Despite your arrest and being read warnings pre-breath testing about a possible suspension or revocation of Your license, Your license remains valid for a minimum of 60 days from the date of your arrest. As long as a hearing is properly requested, your license will remain valid until a hearing is actually held and you are subsequently notified of the hearing results by mail.
The Hearing Proceedings
Once the hearing is requested a date, time, hearing officer will be assigned. On the assigned date, the hearing officer will conduct the hearing, may issue subpoenas for the attendance of witnesses and the production of documents, and shall administer oaths to witnesses.
The report of the law enforcement officer and any other evidence accompanying the report shall be admissible without any other showing required. You may, and SHOULD be represented by counsel, may question witnesses, may present evidence, and may testify. At the end of the hearing, the hearing examiner will likely take the case under advisement and then issue a ruling by mail. This ruling may come within 2 weeks, or it can take over a year from the date to the hearing. The ruling will either sustain the suspension or revocation (you lose) or it will rescind the proposed suspension or revocation (you win).
These hearings are predicated upon the fact that if you operate a motor vehicle in this state you are deemed to have given consent, to a test or tests of your breath or blood for the purpose of determining the alcohol concentration or the presence of any drug in your breath or blood. This is contingent upon the fact that at the time of your arrest, the officer has reasonable grounds (probable cause) to believe you had been driving (or in actual physical control) of a motor vehicle while under the influence of intoxicating liquor or any drug.
If you refuse the breath or blood test request, which you have a right to do, the police can obtain a search warrant for your breath or blood. This usually means drawing blood from you by force and against your will.
Were You Arrested Lawfully?
Are there enough facts in the officer's report to convince the DoL that the officer had reasonable grounds to arrest you for driving or being in actual physical control of a motor vehicle while under the influence of alcohol with a BAC concentration of .08 above? In other words, did the officer have enough information to think that you were over a .08 or affected by the alcohol you drank?
In the case of a minor, the question is whether the officer had reasonable grounds to arrest you for driving or being in actual physical control of a motor vehicle while having an alcohol concentration of .02 or above. This basically means that if an officer smells alcohol, you could likely be over .02 because it does not take much alcohol at all to cross the threshold of .02.
The DoL does not need proof like a court would. Instead, it is a determination of whether the officer had enough information to think you were above a threshold limit.
DoL and a Blood Draw
For the DoL to suspend or revoke your license a blood sample can be used in place of a breath test. If you were incapable of providing a breath sample due to physical injury, physical incapacity, or other physical limitation, or because you were being treated in a hospital, clinic, doctor's office, emergency medical vehicle, ambulance, or other similar facility and a breath test machine is not readily available and the officer has reasonable grounds to believe that the person is under the influence of a drug, a blood test shall be administered.
Regardless of whether it is breath or blood the officer still MUST read you something called Implied Consent Warnings. These warnings are required by statute and usually printed on a form the officer uses. These are the warnings that tell you the consequences of giving a breath / blood sample versus the consequences of not providing such a sample because you invoked your right to refuse such a test.
Implied Consent — Test Refusal — Procedures (RCW 46.20.308)
RCW 46.20.308 is the mechanism for not only DoL hearings, but also the admissibility of breath tests in the District and Municipal Courts. To obtain a hearing, however, it must be timely requested. The new deadline to request a hearing is one of the minor changes with a huge impact occurs.
Paraphrased, subsection 7 now reads:
A person receiving notification under subsection (6)(b) of this section may, within twenty days after the notice has been given, request in writing a formal hearing before the department.
Eliminating 10 days from the driver's side of the timetable is yet another example of just how these hearings really are. DoL is once again securing an advantage over our clients by affording themselves 40 days to find a hearing slot and thereby reducing suspension dismissals in the 2007 -2009 years.
Subsection 2 has had a substantial change which affects the admissibility of breath tests due to the Implied Consent Warnings now requiring the additional warning to arrestees that:
If the driver's license, permit, or privilege to drive is suspended, revoked, or denied the driver may be eligible to immediately apply for an ignition interlock driver's license.
If you review the DUI forms online at the WSP site you will see that this change has been made to the DUI Arrest Forms ICW page. However, not all arresting officers will pull their forms from website, nor will the powers that stock such forms in the various breath testing rooms. Like any change, some agencies will be slow to catch up and successful challenges can be made because in those instances, the breath test will have been administered (or a refusal obtained) in violation of the statutory mandate to warn drivers of the IIL. Regardless of the litigation forum, a violation of the required warnings should lead to suppression of either the breath test or refusal and should lead to a DoL dismissal, as well as provide leverage for a reduction of the charge in court.