DOL: Judge, Jury And Executioner

Judge, Jury And Executioner: The DOL and due process in administrative hearings under the implied consent law.

By Geoffrey Burg and Eric Gaston

Hearing officers for the Department of Licensing (DOL) have long been criticized for not understanding their roles as quasi-judicial officers.

In recent months, however, many have abandoned even the pretense of fairness, instead happily embracing the roles of both prosecutor and judge in administrative license suspension hearings.

When a driver arrested for DUI requests a hearing on the civil (pre-conviction) suspension order, many hearing officers (with the DOL's blessing) have actually taken to gathering evidence prior to the hearing, for use against drivers. Then, acting as the judge of the facts and law at the hearing, they move sua sponte to admit the evidence, overrule any objections, and -- relying on this evidence -- rule against the driver.

This practice obviously flies in the face of the most basic principles of due process and must be stopped.

In the near future, the Bellevue firm of Hayne Fox Bowman & Duarte will launch a civil action against DOL on due process grounds.

According to Steve Hayne, a major hurdle facing this challenge is the statutory exemption the DOL claims from due process requirements imposed by the Administrative Procedures Act:

The Department's Office of Hearings has apparently taken this claimed legislative grace as freedom to make up the rules as it goes along. With a few notable exceptions, most hearing officers don't seem to appreciate that they are passing judgment on fundamental, critical property rights of the accused.

And the most disturbing aspect of these kangaroo courts is the fact that many of them seem oblivious to the conflict of being an advocate and a judge at the same time. The result is a process that is dubious at best and disgraceful at worst.

But unless and until relief is realized in the appellate courts, DUI practitioners must be wary of the trap awaiting them at these hearings.

Background

Under current Washington law, all drivers arrested for DUI or physical control who either blow .08 or above or refuse the test, face two ways of losing their driving privileges: Both a DOL administrative hearing and a criminal charge can lead to driver's license suspensions, and each action is independent of the other.

Under the Implied Consent Law (RCW 46.20.308), whenever a DUI arrest occurs, the DOL issues an order of suspending of the driver's license for from 90 days to three years (depending on the driver's history). Should the driver be subsequently convicted of DUI, there is an additional suspension (again, the length is dependent upon the facts of the case and the defendant's history), although the suspensions may run concurrent depending on the timing of each.

The Implied Consent Law does provide a right to a hearing on the DOL suspension. This leaning must be requested in writing within 30 days of the arrest. It is usually held over the telephone and based on the police report alone (although the officer may be subpoenaed at the driver's request).

There are four issues be decided at the hearing:

1. Whether the petitioner was placed under lawful arrest;

2. Whether the police officer had reasonable grounds to believe the petitioner had been driving or was in actual physical control of a motor vehicle within the state while under the influence of intoxicating liquor or any drug;

3. Whether the petitioner was advised of the right to refuse the breath or blood test; of the right to have additional tests administered by any qualified person of his or her choosing as provided by RCW 46.61.506; that his or her license, permit or privilege to drive would be revoked or denied if he or she refuses to submit to the test; that the license, permit or privilege to drive would be suspended, revoked, or denied if the test is administered and indicates an alcohol concentration above the legal limit; and that a refusal to take the test may be used in a criminal trial; and,

4. Whether the petitioner refused to submit to the test of breath and/or blood or, if the test was administered, whether the results were a at the legal limit or above (.08 for persons age 21 or over; .02 for persons under 21), and that the test was conducted in accordance with the methods approved by the Washington State Toxicologist as found in Chapter 448-13, and or Chapter 448-14, Washington Administrative Code.

Definition and Role of Hearing Officers

These hearings are presided over by "Licensing Hearing Specialists."

According to a recent job posting for this position, a licensing hearing specialist: Presides over Formal Administrative hearings for drivers contesting license revocation, denial, suspension or issuance of a probationary driver's license under DUI laws or suspension under Financial Responsibility laws; directs procedural protocol of hearings to provide fairness, due process and a sustainable review to the State's Superior, Appellate and/or Supreme Courts ...

The implied consent statute refers to this role as that of the "hearing officer." According to statute, the role of the hearing officer is to "conduct the hearing … issue subpoenas for the attendance of witnesses and the production of documents, and shall administer oaths to witnesses...." 46.20.308(8) How the Evidence Gets to the Hearing Officer

Once the driver (petitioner) requests a hearing, the DOL sends a notice to the arresting officer requesting his or her sworn police report, including the breath test ticket and copy of the officer's BAC Datamaster operating card.

If the officer provides this information to the Department of Licensing, the statute provides that it shall be made part of the record without any other evidentiary foundation and is prima facie evidence that the four issues have been met. While both the officer and counsel for the State of Washington and the Attorney General's office may appear at the hearing, nothing requires them to do so and, as a practical matter, they never do (at least not without a subpoena). The case for the state almost always rests with the sworn police report.

The burden then shifts to the petitioner to prove why the license should not be suspended. Petitioners can win these hearings in many ways, but often do so because the police officer either did not comply with the procedures for properly administering the breath test, failed to provide some other critical evidence, or simply did not send a police report.

Up to now, the hearing officers have only looked at the evidence in front of them to decide the hearing. If part of the state's case was missing, then the suspension would be denied and the petitioner would not lose his or her license.

Recently, however, some hearing officers have begun gathering evidence on their own, introducing it as part of the record, and then ruling on it. They have only done this when part of the state's case was lacking and they needed the missing evidence to rule against the petitioner.

This issue has come to the forefront with the addition of WAC 448-13-035, which requires a certified thermometer. Several of the hearing officers have ruled that this is a requirement for the admissibility of the BAC at a hearing. Records of certified thermometers are kept by the Washington State Patrol.

In one recent hearing, when defense counsel pointed out that there was no proof of a certified thermometer, the hearing officer stated that if she ruled this evidence was necessary then she would subpoena it from the Washington State Patrol. This hearing officer stated that DOL hearing officers have "subpoena power" pursuant to RCW 46.20.308(8) that they normally do not utilize -- but that because a revocation hearing is a "fact finding" proceeding, the hearing officer has authority to hold the hearing open in order to subpoena additional information. (Does this power to "freeze" the case in order to obtain missing evidence apply to cases in where the officer forgets to fax the police report? I guess that remains to be seen, but under this hearing officer's analysis it appears it would).

In a second hearing, the hearing officer requested information from the Washington State Patrol regarding certified thermometers prior to the hearing. The hearing officer then entered this information into evidence as an exhibit. Finally, the hearing officer ruled on the evidence to suspend the petitioner's driver's license.

Subpoena Power

The good new is that hearing officers do not have the authority to sua sponte subpoena evidence. A superior court judge recently stated in his RALJ opinion that, "[t]he administrative hearing process contemplated by Chapter 46.61.308 is at best perplexing to this court and at worst a ruse of substantive due process." As defense attorneys, we need to be vigilant against the erosion of our client's rights. Nowhere is this erosion occurring faster than in the realm of DOL hearings.

The United States Supreme Court has recognized that "to perform its high function in the best way, 'justice must satisfy the appearance of justice.'" In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954)). Other courts agree; "[t]he principle of impartiality is as old as the courts. It is a fundamental idea and it is the acknowledged inviolability of this principal that gives credibility to judicial decrees." State ex rel. Barnard v. Bd. Of Educ., 19 Wash. 8, 17-18 (1898). And: "the law requires more than an impartial judge; it requires the judge to appear impartial." State ex rel. McFerran v. Justice Court, 32 Wash.2d 544 (1949). Finally, our federal and supreme courts have held that, "[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal settings." Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980), and that "[a] trial judge advocating on behalf of one party to a dispute denies due process of law." Wounded Knee v. Andera, 416 F. Supp. 1236 (D.S.D. 1976); People v. Martinez, 185 Colo. 187, P.2d 120 (1974).

Apparently these cases didn't find their way into the "Licensing Hearing Specialist" orientation packet.

DOL hearing examiners will claim that they have the authority issue subpoenas under RCW 46.20.308(8), or to gather additional information under WAC 10-08-200(9). While this is technically correct, nowhere does it give them the authority to issue a subpoena or gather additional evidence absent the request of a party.

"Issuing" a subpoena is a different function than obtaining evidence by means of a subpoena. RCW 46.20.308(8) provides that a DOL hearing "is subject to and shall be scheduled and conducted in accordance with RCW 46.20329 and 46.20.332...." According to statute, "the department" may "issue" subpoenas for the attendance of witness and the production of relevant books and papers, "in the manner and subject to the conditions provided in Chapter 5.56 RCW relating to the issuance of subpoenas." RCW 46.20.332. Washington law further provides that "a party" desiring the attendance of a witness must apply to the referee (or hearing officer) who may grant the party's application and issue a subpoena. RCW 5.56. The hearing officer is further bound by the provisions of WAC 10-08-120, which states that, "Every subpoena shall identify the party causing issuance of the subpoena." (Emphasis added).

The role of a referee is clarified by RCW 5.56.010, which states that a referee may compel a witness to attend a proceeding upon application of a party. A DOL hearing officer is authorized to "issue" a subpoena upon application by "a party"; a DOL hearing examiner is not a "party" in a revocation hearing.

There is no language in RCW 5.56 that would empower a DOL hearing officer to sua sponte compel the attendance of a witness or subpoena documentary evidence, and any hearing officer's attempt to do so should be met with the strenuous objection of counsel.

As of now, there is no Washington case law that specifically addresses the duties and obligations of a DOL hearing officer. However, State ex rel. Beam v. Fulwiler, 76 Wn.2d 313, 456 P.2d 322 (1969), makes it clear that administrative bodies must be zealous to protect "fundamental rights of the parties, lest the rule against arbitrariness and oppressiveness become a mere shibboleth." Beam, 76 Wn.2d at 326, 456 P.2d 322, quoting State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 261, 40 So.2d 689 (1949). An individual appearing in an administrative proceeding has a "right to hearing by impartial triers of the facts...." Id., quoting New Jersey Board of Optometrists v. Nemitz, 21 N.J.Super. 18, 37, 90 A.2d 740 (1952).

In Martinez v. Department of Licensing, 70 Wn. App. 398, 854 P.2d 43 (1993), the scope of a revocation hearing -- and thus the duties of a hearing officer -- is discussed. At a revocation hearing, "the matters within the sworn report, which are the basis of the revocation order, are scrutinized." Martinez, 70 Wn. App. at 401-402, 854 P.2d 43. Accord, Frank v. Washington State Dept. of Licensing, 94 Wn. App. 306, 310, 972 P.2d 491 (1999). There is no suggestion, either in statute or in case law, that a hearing officer may expand the scope of the revocation hearing or his her own duties. The hearing officer is authorized to "scrutinize" the department's records, which are in existence at the initiation of the hearing, and nothing more. Although the DOL may apply to the hearing officer to issue a subpoena for evidence, which the hearing officer may then "scrutinize," a hearing officer may not become the proponent of evidence for the DOL.

While a revocation hearing may be considered a "fact-finding" hearing, the parties must present the facts to the hearing officer. Evidence may be considered by the hearing officer, but under RCW 5.56.010, must be propounded by a "party," i.e., the individual whose license may be revoked, or the Department of Licensing. This evidence is then to be "considered" by the hearing officer at the revocation hearing. RCW 46.20.332.

Under Washington law, a license to drive may not be revoked without a hearing that satisfies the requirements of due process. Lytle v. State Dept. of Licensing, 94 Wn. App. 357, 361-362, 971 P.2d 969 (1999). Washington statutes, administrative regulations, and the concept of due process cannot be reconciled with a hearing officer proactively issuing subpoenas to procure evidence to help prove the DOL's case. When a hearing officer sees a problem with the department's case, and sua sponte issues a subpoena, or otherwise acts as a proponent instead of an impartial trier of fact, it is a blatant assault upon the guarantees of due process afforded to our clients and we must object.

As is often the case, our objections will likely be met with the ubiquitous rejoinder of, "I understand your position. I disagree. Appeal me."

However, if your hearing officer is unable to see the inherent problem with taking on both the role judge and prosecutor, then we must ask our superior courts to spell it out for them. The role of a hearing officer is perhaps best spelled out in their own job description, to "direct procedural protocol of hearings to provide fairness, and due process." It is not the role of a hearing officer to procure evidence that is not there; it is not the role of a hearing officer to plug holes in the DOL's case; and it is not the role of the hearing officer to run roughshod over a driver's right to due process because the hearing officer thinks the license should be suspended.

Geoff Burg, Seattle, is a criminal defense attorney with an emphasis in DUI and criminal traffic law.

Eric Gaston, Bellevue, is a sole practitioner with a criminal law practice focused on all aspects of DUI defense.

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