If you have been arrested for a Washington State DUI or physical control charge, you are most likely facing a driver's license suspension or revocation by the Department of Licensing. Washington State has an “implied consent law” which allows the Department of Licensing to revoke or suspend your license if you either:
(1) refuse to take a breath or blood test if lawfully asked, or
(2) take a breath or blood test and your alcohol level is .08 or higher.
You have a right to challenge any action the Department of Licensing takes, but the burden is on you to request a hearing by mailing in a form to the DOL or requesting the hearing online. You have 20 days from the date of your arrest to request this hearing. It is crucial that you do not miss this deadline.
Many drivers are confused that the DOL administrative process and potential license suspension happens whether or not you have been criminally charged in court with a Washington State DUI. This means your license may be taken away from you by the Washington State Department of Licensing even if you are never charged with the crime of DUI or physical control.
You may be wondering if it is worth bothering with this hearing. We say absolutely. It is impossible to tell ahead of time who will win these hearings and who will not. While they are difficult to win and it often feels like the deck is stacked against the drivers, many people do win these hearings. The benefits of winning a hearing far outweigh the costs of requesting the hearing.
Here are some of the benefits to requesting a hearing:
- We get a copy of the police report to review and assist in any investigation of your case.
- We have the opportunity to subpoena and question the police officer under oath about his or her contact with you at the time of your arrest.
- Even if you lose the hearing you can still apply for an Ignition Interlock License and be able to continue driving 24 hours a day, 7 days a week, with such a license.
- You could win the hearing and avoid loss of your license, SR-22 insurance, and the need to apply for an Ignition Interlock License.
If you properly request a hearing, the DOL must schedule your hearing within sixty days of the date of your arrest or notice or the action against your license may be dismissed. Once a hearing is scheduled within this sixty day window, your attorney may want to continue the hearing for a variety of reasons – further investigation, time to subpoena the officer, or to see if the court will suppress the breath test or refusal in your criminal case. If the hearing is continued past the sixty days, your license will remain valid as a temporary license at least until the next hearing (assuming it is not suspended for any other reason).
Burden of Proof
The hearing itself typically takes place over the telephone, though in rare circumstances it can take place in person. You are allowed, but not required, to be present at the hearing. At the hearing the Department of Licensing has the burden of proving the case against you by a preponderance of evidence.
The DOL must establish the following issues by a preponderance of evidence to take any action against your license:
- Whether you were lawfully placed under arrest.
- Whether the officer had reasonable grounds to believe any of the following:
- You were driving or were in actual physical control of a motor vehicle while under the influence of alcohol or drugs.
- You were under the age of 21 years and were driving or in actual physical control of a motor vehicle after consuming alcohol.
- Whether you were properly advised of the Implied Consent Warnings.
- Whether you refused the breath or blood test; or,
- Whether the breath or blood test exceeded the legal limits:
- .08 or more if over age 21,
- .02 or more if under age 21.
- .04 or more if driving a commercial vehicle.
- Whether the breath or blood test was administered according to the law and Washington State Toxicologist Rules.
If they can prove the case, you will lose your license for 90 days, 1 year, or 2 years depending on whether or not it a 1st or 2nd offense DUI or a refusal.
The hearing officers do not typically make a decision at the hearing. The hearing officer will review the evidence presented, the arguments made by your attorney, and any relevant law and then issue a written decision at a later date. The majority of hearing officers make their decision in 2-6 weeks from the date of the hearing. Your license remains valid pending any decision. If the ruling is in your favor, there is no license suspension and the Department's action is dismissed. If the ruling is against you, you will be notified of the date your license suspension will begin -- typically in about two weeks notice from the notice.
If the DOL rules against you and sustains the license suspension or revocation, you will have the option of either applying for the ignition interlock license or appealing the DOL's decision to the Superior Court.