WSR 04-17-122

PROPOSED RULES

DEPARTMENT OF LICENSING


[ Filed August 17, 2004, 2:07 p.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule and Other Identifying Information: Request for hearing conducted under RCW 46.20.308.

Hearing Location(s): Highways-Licenses Building, Conference Room 413, 1125 Washington Street S.E., Olympia, WA (check in at counter on first floor), on September 22, 2004, at 3:00 p.m.

Date of Intended Adoption: September 23, 2004.

Submit Written Comments to: Clark J. Holloway, P.O. Box 9030, Olympia, WA 98507-9030, e-mail cholloway@dol.wa.gov, fax (360) 586-8351, by September 21, 2004.

Assistance for Persons with Disabilities: Contact Clark J. Holloway by September 21, 2004, TTY (360) 664-0116.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Amends WAC 308-103-040 to clarify the time period in which a driver may request a hearing when the department proposes to suspend or revoke the person's driving privileges following an arrest for an alcohol-related traffic offense.

Reasons Supporting Proposal: Current rule provides that a person may request a hearing within thirty days of arrest in certain alcohol-related traffic cases. RCW 46.20.308, however, provides that the person may request a hearing within thirty days of the date notice is given by a law enforcement officer of the department's intent to suspend, revoke, or deny the driver's license. While these dates are usually identical, circumstances occasionally occur where the processing of the arrest delays the service of notice of the intent to suspend, revoke, or deny until the day following arrest. This amendment is necessary in order to assure that the driver is given adequate time to file a request for a hearing as provided by RCW 46.20.308.

Statutory Authority for Adoption: RCW 46.01.110, 46.20.308.

Statute Being Implemented: RCW 46.20.308.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of Licensing, governmental.

Name of Agency Personnel Responsible for Drafting: Clark J. Holloway, Highways-Licenses Building, Olympia, Washington, (360) 902-3846; Implementation and Enforcement: Denise Movius, Highways-Licenses Building, Olympia, Washington, (360) 902-3850.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required pursuant to RCW 19.85.025(3).

A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to this proposed rule under the provisions of RCW 34.05.328 (5)(a)(i).

August 17, 2004

Denise M. Movius

Assistant Director


AMENDATORY SECTION(Amending WSR 02-11-011, filed 5/3/02)

WAC 308-103-040   Requests for hearings.   The request for a hearing shall be in compliance with the following requirements:

(1) The petitioner must file his or her formal request for hearing:

(a) Within thirty days of ((arrest)) the date notice is given under RCW 46.20.308(6) if the petitioner submitted to a breath test;

(b) Within thirty days of ((arrest)) the date notice is given under RCW 46.20.308(6) if the petitioner is alleged to have refused the breath or blood test; or

(c) Within thirty days of the date notice of the department's intention to suspend, revoke, or deny the petitioner's license, permit, or privilege to drive is given in the event notice is given by the department following a blood test;

(2) If a request for hearing is mailed, it must be received by the department within seven days of the date the request was postmarked in order to be considered timely under this section. This provision may be waived if the request is received by the department within thirty days of the date of arrest, or within thirty days of the date notice is given in the event notice is given by the department following a blood test, or if the petitioner and the department agree to a wavier of the sixty-day hearing requirement;

(3) The request for a hearing shall be in writing. The petitioner may use the form provided by the department for this purpose or any other writing;

(4) The hearing request form provided by the department shall include a statement that if the parties or witness(es) are hearing or speech impaired and/or non-English speaking, a qualified interpreter will be appointed at no cost to the parties or witnesses. The form shall include a section where the petitioner may request an interpreter and where he or she may identify the language and/or nature of the interpretive services needed;

(5) The request for hearing shall include the following information with respect to the petitioner:

(a) Full name;

(b) Mailing address;

(c) Daytime telephone number, including area code;

(d) Date of birth; and

(e) Driver's license number;

(6) If petitioner will have legal representation at the administrative hearing, the request shall also include the legal representative's name, mailing address, and daytime telephone number, including area code;

(7) The request for hearing shall be submitted to the Department of Licensing, Driver Services Division, Hearings & Interviews, P.O. Box 9031, Olympia, Washington 98507-9031;

(8) The written request for hearing shall be accompanied by a filing fee of one hundred dollars, unless the petitioner is entitled to a waiver of the filing fee because of indigence, in which case a request and justification for the fee waiver shall accompany the hearing request;

(9) A petitioner who has been denied a court-appointed attorney on the underlying related criminal charge because he or she is deemed "not indigent" is not eligible for a fee waiver;

(10) Indigence may be established as follows:

(a) Written verification of court-appointed legal counsel on the associated underlying criminal charge;

(b) Written verification of current involuntary commitment to a public mental health facility;

(c) Verification of current receipt of general assistance, temporary assistance for needy families, refugee resettlement benefits, food stamps, supplemental security income, or Medicaid; or

(d) Submission and approval of the department's "Application for Waiver of Hearing Fee" form;

(11) Failure to timely submit a hearing request and/or failure to include the filing fee or application for waiver with the hearing request shall be deemed a waiver of the petitioner's right to a hearing; and

(12) If a request for hearing is denied, the department shall notify the petitioner and the petitioner's legal representative, if any, stating the reason(s) for denial.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-040, filed 5/3/02, effective 6/3/02.]

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