By Geoffrey Burg and Patricia Fulton
Anyone who handles DUI and other driving related cases knows that dealing with the driver's licensing issues can lead to headaches and heartache.
The law is complicated.
The hearings frustrating.
The consequences of losing can be devastating to our clients who depend on their license to function in this society.
For those of you on the WACDL listserv, you know that one of the common questions is "What will the DOL do in this situation . . . ." Or, "Will my client lose her license if ....."
Below is a list of some basic questions and issues that affect our clients' cases and their answers.
1. The Court did not order my client to install ignition interlock (IID) in her car, will the DOL require it?
Perhaps. Upon a conviction or entry of a deferred prosecution, the DOL will require your client to drive only vehicles equipped with an IID if the breath test was refused, .15 or higher, or it is a second or subsequent conviction in seven years. The length of the IID requirement starts at one year for a first offense, then increases to 5 years and 10 years for second or subsequent IID requirements. A deferred prosecution is considered a conviction for the purposes of this law. (1) Prior to allowing your client to reinstate his or her driving privilege, the DOL will require written proof of the installation of an IID.
2. My client was just convicted, does the license suspension take effect now, or at time of sentencing?
Now. Courts are required to report convictions to the Department of Licensing within two weeks of when they occur. (2) The DOL begins the suspension on the date of the conviction, not the date of sentencing.(3) Thus, if your client is found guilty at trial or enters a plea of guilty the suspension automatically goes into effect at that time, even if the sentencing has not occurred. This may seem odd, since in most cases your client will not be notified that his or her license has been suspended. However, under the law, the suspension goes into effect at time of conviction, not sentencing.
3. My client received a bail forfeiture, is this really a "conviction" for DOL purposes?
Yes. The term "conviction" is broadly construed by the DOL. What may not be a conviction in the criminal law world may still be treated as a conviction by the DOL. Deferred sentences and bail forfeitures are both considered convictions by DOL. (4) Thus, negotiating a bail forfeiture in a case that mandates a license suspension may be a benefit for purposes of the criminal record, but will not help your client keep her license.
4. My client refused the breath test, can she keep her license if she enters into a deferred prosecution?
No, unless you have prevailed in the DOL administrative hearing. A deferred prosecution will not stay the administrative suspension in a case where the person has refused the breath test. (5)
5. Will my client be able to get an occupational driver's license or a limited license?
Maybe. An occupational driver's license may be granted, for purposes of work and a limited license for purposes of substance abuse treatment (including 12-step meetings) if all of the following conditions are met:(6)The license was valid at date of arrest or conviction; and
- No convictions for reckless driving, racing, hit and run (attended), attempting to elude, or DWLS/R within 12 months of the date of arrest; and
- No convictions for DUI, physical control, vehicular assault, vehicular homicide or negligent homicide within 7 years of the date of arrest; and
- The current charge is not vehicular assault, vehicular homicide or negligent homicide; and
- Vehicle necessary for work or getting to work; and
- The occupational license will not be used to operate a commercial vehicle with a CDL; and
- SR-22 Insurance is in place.
- If DUI conviction, then 30 days of the suspension must have passed.
- If DWLS2, driving privilege was reinstated prior DWLS2 conviction.
6. Does it really matter if my client turns in her license to the court after it has been has been suspended?
Yes, it really matters and failure to do so can lead to additional suspension. According to statute, "the department upon suspending or revoking a license shall require that such license shall be surrendered to and be retained by the department." (7) Failure to surrender a nonprobationary license after a conviction for DUI or physical control will lead to a one year suspension. However, the statute allows for the license not to be surrendered if your client fills out an affidavit that the license has been "lost, stolen, destroyed." (8)
The DOL has recently revised the "Affidavit of Non-Surrender" (SR-551-006) form which adds an option for the court to circle punch the license expiration date and give it back to your client for purposes of identification. The DOL takes the position that this does not violate the law because a license "punched" in such a manner is no longer a license, "it is just a piece of paper with a hole in it." (9)
7. My client is facing two DUIs and wants to do a deferred prosecution on one of them, does the order matter?
Yes, it matters very much. Generally, if a deferred prosecution is going to be done on one of the charges, it should be done on the offense with the later date of incident. The first offense must be resolved in the courts before entering the deferred prosecution on the second offense. The DOL considers a conviction a first or second offense based on the order it receives notice from the criminal courts -- not on the date of incident or even conviction date. (10) Be aware that not all courts are prompt in reporting licensing actions and convictions to the DOL. Take caution to make sure that a case the court has treated as a first offense is not treated as a second offense by DOL (or vice versa). Failure to do this can lead to drastic and unintended license consequences for your client.
8. May the Court direct the DOL to run administrative and conviction suspensions concurrently?
No. The DOL will not honor a court's directive to run the two suspensions concurrently. The effective date of license revocations and suspensions is set by statute. (11) A suspension or revocation arising from a criminal conviction begins on the date of conviction. (12) The effective date of an administrative suspension or revocation under the implied consent law is either sixty-one days after the date of arrest or when the action is sustained at an administrative hearing. (13) For first offenses, these dates may overlap and all or a portion of the two suspensions run concurrently - but otherwise the suspensions will be consecutive.
9. If the court suppresses my breath test, do I still have to fight the DOL?
Yes, as they are two separate legal proceedings. However, under the doctrine of collateral estoppel, a written order suppressing the breath test or refusal can be applied to the DOL administrative hearing. (14)However, the DOL will not honor orders suppressing breath tests or refusals for reasons not applicable to the four issues outlined in the implied consent statute such as failure to provide reasonable access to counsel.
10. My client has a Commercial Driver's License, can he get an occupational CDL?
No. Commercial vehicles may be driven only by individuals with a valid driver's license. (15) As an occupational license is considered a temporary, restricted license - not a "valid" license - your client is ineligible to drive a commercial vehicle even with an occupational license. If your client is disqualified from his CDL for 1 year or more, the driver must re-qualify for the CDL by re-testing.
11. My client is currently revoked for seven years as a Habitual Traffic Offender (DWLS 1st Degree), is there any way to petition the DOL for early reinstatement?
Yes. If the offenses triggering the HTO suspension were caused by or were the result of alcoholism, and the driver has made at least 60 days satisfactory progress in an approved alcoholism treatment program since the last offense the DOL may stay the revocation. (16) Additionally, after four years of the seven year suspension have elapsed, the driver may petition the DOL for early reinstatement. (17)
Geoff and Patricia regularly represent people accused of DUI and other criminal traffic matters and are always in search of new back lines to the department of licensing.
1 - RCW 46.20.740
2 - RCW 46.20. 270
3 - WAC 308-104-056
4 - RCW 46.20.270
5 - RCW 46.20.308(10)
6 - RCW 46.20.380, .391, .394, .400, .410
7 - RCW 46.20.315
8 - RCW 46.20.355
9 - DOL Update, 10/27/03 - http://www.dmcma.org
10 - RCW 46.20.285
11 - RCW 20. 270(1)
12 - WAC 308-104-056
13 - RCW 46.20.308
14 - Thompson v. DOL, 91 Wn.App. 887 (1998); Schuman v. DOL, 108 Wn.App. 673 (2001)
15 - RCW 46.25.050
16 - RCW 46.65.060
17 - RCW 45.65.080
If the legislature intended the court to consider the seven years beforeand the seven years after the current case, why would they have used the adjective "prior"?
Unfortunately, a review of the legislative history surrounding RCW 46.61.5055 and earlier versions of the DUI sentencing statute fails to shed any light on this issue.
I recently dealt with this issue in Pierce County when a prosecutor argued that the court should consider a fourteen year window of time when computing my client's prior offenses. My client had been convicted of a DUI in 1997 and then entered into a deferred prosecution on another DUI charge in 2000. In 2005, when he was again convicted, the prosecutor successfully moved to revoke the deferred prosecution and took the position that the DUI sentencing statute required the court to sentence my client to the mandatory minimums for a third offense.
The prosecutor argued that the language of RCW 46.61.5055 did not limit the court to considering only the 1997 conviction, but required it to consider all convictions both seven years before the current offense and seven years after.
According to the prosecutor, in RCW 46.61.5055, "prior" did not really mean prior.
The prosecutor argued that by placing the adjective "prior" within quotations with the noun "offense," the legislature created a term of art with a meaning specific to RCW 46.61.5055.
Considering that "a legislative definition prevails over a dictionary definition or common understanding of any given term," this argument could be persuasive. (3)
I responded to this by arguing that the DUI sentencing statute was ambiguous and therefore the rule of lenity required that the judge consider only the 1997 conviction as a prior and sentence my client as a second offense.
A statute is considered ambiguous when it is subject to more than one reasonable interpretation. (4) If a statutes is ambiguous, the court must look to the rule of statutory construction for guidance. The first rule of construction for criminal statutes is the rule of lenity which requires that the court "must strictly construe ambiguous statues in favor of the defendant." (5)
In my case, the judge determined that RCW 46.61.5055 required the court to only count the convictions that occurred within a seven year window of time.
However, that seven year window was not fixed in time and could encompass convictions occurring both before and after the arrest date for the current offense. Consequently, the court would consider either my clients 1996 conviction or his 2005 conviction (but not both) and sentence him as a second offense.
While a "win" for my client, this decision still leaves open the possibility of two second offense convictions if you fail to carefully coordinate the timing of resolutions on your client's cases.
1. This article simplifies RCW 46.61.5055 for purposes of brevity - please see the actual statute for more detailed descriptions of what would constitute a "prior offense".
2. In re Recall of Pearsall-Stipek, 141 Wn. 2d 756, 767 (2000); see also Berrocal v. Fernandex, 155 Wn. 2d 585 (2005).
3. In re F.D. Processing, 119 Wn.2d 452 (1992); See also American Legion Post 32 v. Walla Walla, 116 Wash.2d 1 (1991); State v. Hickok, 39 Wash.App. 664 (1985).
4. See, e.g. State v. Roggenkamp, 153 Wn. 2d 614 (2005). State v. Johnson, 119 Wn.2d 167 (1992).
5. See, State v. Jacobs, 154 Wn. 2d 596, 603 (2005), United States v. Enmons, 410 U.S. 396, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973).