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In January 2019 the rules regarding requesting and scheduling a Hearing to challenge the suspension or revocation of an arrested driver’s license changed. The changes are documents here. The change in this statue was also codified in the secondary authority Washington Administrative Code – WAC 308-101.
In summary, it changed in the following manner, and as a result, my advice on how to make the request has also changed and will be commented on along the way.
From the date of the arrest a person now has only 7 days to make a request of the Department of Licensing (DoL) to provide a hearing. Every person arrested for DUI or Minor Operating After consuming Alcohol or THC and either provided a breath sample or refused breath are entitled to challenge the action that DoL is seeking to impose. The method and timeline for those who had a blood test administered to search the blood for presence of THC and exceeding the adult limit of 5ng, or minor limit of 0.00ng ARE DIFFERENT. What follows are only the procedures for breath or refusal. Blood procedures differ because there is a substantial delay between draw, test, and right to a hearing.
For Those Who Take Breath Tests and Those Who Refuse
For breath test and refusals, the purpose of the hearing is to ensure your right to be heard before the DoL takes action against your driver’s license. It enforces your Due Process Rights. A driver’s license is a privilege and not a right, but before it is suspended / revoked the DOL must follow the law, but you must enforce that. No suspension / revocation is "automatic." Rather a driver is ALWAYS entitled to be heard before. However, it's a legal procedure and only a few issues are relevant, so a person should have the assistance of counsel for the hearing.
A license to drive, either a Commercial Driver’s License (CDL) or a Personal Driver’s License (PDL), are important property, and prior to taking this from a person the government must provide notice and then a meaningful opportunity to be heard. This is your Due Process—a process that is fair to the party who is sought to be deprived of the property. However, it only needs to "appear" fair, so at the end of the day, it may not always "feel" fair.
Long ago the Supreme Court put these protections in place thereby making it clear that a license is a privilege. In Washington State, the DoL is responsible for "managing" your license, but every driver should be involved in maintaining and renewing their license, particularly when a DUI arrest occurs. A person in such a situation needs to be even more vigilant and active.
The right to a hearing in the DUI context, means requesting and paying for a hearing ($375) to "challenge" the proposed action by DoL in the form of:
- Suspending — at least 90 days as a result of a "first offense" DUI arrest with a breath test over .08 (Adult), or over .02 (Minor) or
- Revoking — at least a year for first offense refusal of breath test.
- If the arrest is a second arrest in 7 years, and in the previous arrest the DoL took action, the proposed action by the DoL is 2 years regardless of whether a person provided a sample or refused.
A person becomes aware of their pending suspension/revocation when the arresting officer provides a form. It is the arresting officer’s job to provide a person with the form to request a hearing, but its always best to go directly to the DoL website, and either download it OR even better, request the hearing online through their site.
Requesting Online Is Better
Here is why: A DUI arrested driver/person has 7 days to make the hearing request. If you do not make such a request, no hearing will be given and 30 days from the arrest date, a driver/person will suffer the license suspension (90 days) or revocation (1 yr if refused) or a 2 year revocation if second arrest in 7 years. While the Hearing Request Form can be mailed, acting immediately and requesting online forces the DoL into immediately abiding by the rules, sooner rather than later.
My practice is to request the hearing as soon as possible and via their website, because once the request is made, the DoL has 30 days, excluding weekends and holidays to schedule a hearing. Mailing the form, after waiting up to 7 days, delays their starting timeline. It used to be the case that waiting had a bigger impact on the DoL’s scheduling process, but now that has changed, and so the sooner the request the sooner the hearing has to be set. There are only so many hearing examiners in the DoL, and if every person arrested every day, requested a hearing immediately, the DoL could schedule them, but hearing examiners would be double and triple booked and that means hearings would need to be continued at the DoL's request, which creates an issue. This is not intended to be an example of a fool proof method of winning, in fact, it's the opposite, and only serves to provide and example of the important of requesting a hearing immediately.
In order to request a hearing you do NOT have to have an attorney on board, as they can be brought on board later. However, if you are arrested, and then meet an attorney, you should have their information for the hearing. If you consult with an attorney and their advice is to NOT request a hearing, I believe this to be a red flag. Some attorney’s give this advice because these hearings are VERY hard, and we have a State-wide winning percentage that is VERY low, somewhere around 25%. I believe that NOT requesting a hearing because they are hard is a disservice to my clients because much can be gained from the hearing which can positively impact the criminal side even if the hearing results in a loss (meaning the license is suspended/revoked). There are more benefits to the request than this, but again, an example of how collateral "good" things can come from requesting a hearing and going through the process of the hearing.
Once a hearing is requested, the DoL cannot suspend/revoke/take action against a license until the hearing is held, ruled upon, and then decision issued. The timeline, looks like this:
- From the date of receiving the request, the DoL must schedule a hearing excluding weekends and holidays. So the time of year the DUI arrest and request happens can play into the timeline. But in any given timeframe, there are 6 weeks of business days and DoL’s hearing date has to fall within them.
- The hearing takes about 1 hour. In many instances once the original timeframe is met, many attorneys will continue the hearing because the assigned date does not work, or the attorney needs additional time to accumulate video, photos, secure witnesses, etc., and the DoL will almost always allow a first continuance (see the info above about too few hearing examiners), but every case is different as is every strategy and this timeline is just an example.
- If the hearing is continued it's usually about 30 days, making the time thus far 72 days. The hearing examiner’s decision rarely comes during the hearing; they often take between 30 and 60 days to issue the ruling after the hearing.
- Finally, once the ruling is issued, there are generally 7-14 days between receiving the notice and the date the person must stop driving. However, a person can continue to drive during any suspension or revocation if they qualify for an Ignition Interlock License (IIL).
To summarize, once the hearing is requested, the driver’s license is VALID until the final decision is made. Given the timeline above that means around 120 days will go by from arrest to decision — that's 4 additional months.
Requesting a Hearing Online
- To request a hearing online you will need to sign up for or log into your License eXpress account. An email address is required to register for an account. Have your driver’s license, a credit/check card, and your DUI citation so you can record the case/citation number ready. If you do not have your case/citation number you can still request a hearing.
- Once you've signed up or logged in, you'll see a Request a DUI Hearing on the right Under Driver's Information
- Follow the wizard through the steps to request your hearing
Tips When Filling Out the Form
- I always suggest that a person take a screen shot of each step simply to keep a record
- Provide the DOL with your current information
- If you don’t have the citation number, check that box indicating so, otherwise enter the information from your ticket
- Attorney Information
- If you DO NOT have an attorney at time of the request, DO NOT enter any information for an attorney, even if you plan on hiring one. This means the DoL will send YOU the hearing date, time, and package materials and you can give that to your attorney when you do hire one. Once you hire an attorney, you can provide them with the Proof of Hearing request and they can file a Notice of Appearance with the DoL and will subsequently receive the DoL materials instead.
- If you have been assigned a Public Defender, DO NOT list them on the form. Public Defenders Do Not handle these hearings, but many DUI Defense Lawyers are for hire (typically at a reduced rate) for DoL hearings for those who have a Public Defender.
- If you DO have an attorney already engaged and who has agreed to take your case including the DoL hearing (and most will) you can provide their information.
If you are my client and reading this, my information is as follows:
Jonathan Rands (middle name is not required)
21 Bellwether Way, Suite 109
Bellingham, WA 98225
Fax: Not required
Email: [email protected]
The final step is payment. As a reminder, no matter what screen you have just filled in take a screen shot before moving on. At the end of he application procedure you will be prompted to print a final page. Do this but also take a screen shot as it does not confirm that it was processed. A different screen contains this confirmation.
Requesting a Hearing by Mail
While I highly recommend requesting your hearing online for reasons given above, by mail is also an option. You will need to fill out the Hearing Request Form and send the complete form plus a check or money order payable to the Department of Licensing for the non-refundable $375 fee to the address on the form. This form must be postmarked within 7 days of the date of the arrest, or within 7 days of the date notice was given, otherwise you waive your right to a hearing.
The DoL procedure has many aspects; many hearing examiner’s/administrative law judges; many timelines, rules, and sub rules. The hearing request process is the first critical step that you must do on your own because it is time sensitive. But once requested, the nature of the hearing requires the knowledge, work, and creativity of a DUI dedicated lawyer.
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 (5)(b) of this section may, within seven 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.