Purpose: Amends rules regarding eligibility for an occupational/temporary restricted driver's license and denial hearings.

     Citation of Existing Rules Affected by this Order: Amending WAC 308-104-100 and 308-104-105.

     Statutory Authority for Adoption: RCW 46.01.110 and 46.20.391 (1)(c).

      Adopted under notice filed as WSR 04-15-122 on July 20, 2004.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: August 27, 2004.

Denise M. Movius

Assistant Director

     (((1))) (a) The person had an unexpired driver's license;

     (((2))) (b) The person did not have his or her resident driver's license or nonresident driving privilege suspended or revoked for any reason; and

     (((3))) (c) The person had not been required to surrender his or her Washington driver's license to the department for failure to maintain proof of financial responsibility for the future.

     (2) No person may petition for, and the department shall not issue, an occupational/temporary restricted driver's license that is effective during:

     (a) The first thirty days of any suspension or denial imposed under RCW 46.20.3101 (2)(a) or (3)(a);

     (b) The first ninety days of any revocation or denial imposed under RCW 46.20.3101 (1)(a); or

     (c) The first year of any revocation or denial imposed under RCW 46.20.3101 (1)(b), (2)(b), or (3)(b).

     (3) Notwithstanding the provisions of this section, an occupational/temporary restricted driver's license shall not be issued for the operation of a commercial motor vehicle when the commercial driver has had his or her license suspended, revoked, or denied, or has been disqualified from operating a commercial motor vehicle.

[Statutory Authority: RCW 46.01.110. 00-18-070, § 308-104-100, filed 9/1/00, effective 10/2/00. Statutory Authority: RCW 46.01.110 and 1989 c 178 §§ 3, 5, 8 and 16. 89-18-003, § 308-104-100, filed 8/24/89, effective 9/24/89. Statutory Authority: RCW 46.20.391, 46.01.110 and 46.65.020. 86-07-018 (Order DS 2), § 308-104-100, filed 3/12/86. Statutory Authority: RCW 46.01.110. 82-03-046 (Order 668 DOL), § 308-104-100, filed 1/19/82; Order MV 349, § 308-104-100, filed 1/28/76.]

     (2) Within ten days of receipt of a request for a hearing, the department shall notify the requester in writing of the time and location of the hearing. The hearing may be held either in the person's county of residence or in any county adjoining the person's county of residence, except that all or part of the hearing may, at the discretion of the department, be conducted by telephone or other electronic means.

     (3) The hearing shall be conducted by a hearing officer appointed by the director. The director may delegate the authority to render final decisions to the hearing officer.

     (4) The scope of the hearing shall be limited to the following issues:

     (a) Whether the person had a valid license on date of conviction or, if the suspension or revocation is based on an administrative action, on the date the suspension or revocation became effective, or, if there are multiple suspensions or revocations in effect, on the date of conviction for the offense on which the first suspension or revocation is based or on the date the first suspension or revocation based on an administrative action became effective.

     (b) Whether the suspension or revocation giving rise to the application for an occupational/temporary restricted driver's license is one for which an occupational/temporary restricted driver's license may be issued under RCW 46.20.391.

     (c) ((Whether the person has been convicted of any offense relating to motor vehicles for which suspension or revocation of a driver's license is mandatory within the one year immediately preceding the conviction or incident for which the occupational license is requested.

     (d))) Whether the person has committed an offense of ((driving or being in physical control of a vehicle while under the influence of intoxicating liquor, or)) vehicular assault or vehicular homicide((,)) within the seven years immediately preceding the conviction or incident for which the occupational/temporary restricted driver's license is requested or, if there are multiple suspensions or revocations in effect, within the seven years immediately preceding the latest conviction or incident for which the occupational/temporary restricted driver's license is requested.

     (((e))) (d) Whether the person is currently suspended or revoked for any reason ((other than the offense)) for which ((the)) an occupational/temporary restricted driver's license is ((requested)) not available.

     (((f) If the person is applying for an occupational driver's license under RCW 46.20.391(1), (e) Whether it is necessary that the person operate a motor vehicle because he or she:

     (i) Is engaged in an occupation or trade that makes it essential that the person operate a motor vehicle. For purposes of this section, occupation or trade means being self-employed, or in the employ of another, for monetary compensation((.));

     (ii) Is undergoing continuing health care or providing continuing care to another who is dependent upon the person;

     (iii) Is enrolled in an educational institution and pursuing a course of study leading to a diploma, degree, or other certification of successful educational completion;

     (iv) Is undergoing substance abuse treatment or is participating in meetings in a twelve-step group such as Alcoholics Anonymous that requires the person to drive to or from the treatment or meetings;

     (v) Is fulfilling court-ordered community service responsibilities;

     (((g) If the person is applying for an occupational driver's license under RCW 46.20.391(2), whether the person)) (vi) Is in ((or has applied for an apprenticeship program or on-the-job training program, or is in)) a program that assists persons who are enrolled in a WorkFirst program pursuant to chapter 74.08A RCW to become gainfully employed and the program requires a driver's license;

     (vii) Is in an apprenticeship, on-the-job training, or welfare-to-work program; or

     (viii) Presents evidence that he or she has applied for a position in an apprenticeship or on-the-job training program for which a driver's license is required to begin the program((, or is undergoing substance abuse treatment or is participating in meetings of a twelve-step group such as alcoholics anonymous, that makes it essential that the person operate a motor vehicle)).

     (5) The person's official driving record provided to the hearing officer by the department shall be prima facie evidence of the issues contained in subsection (4)(a) through (((e))) (d) of this section unless the person presents clear and convincing evidence to the contrary.

     (6) ((If the person is eligible for an occupational driver's license under RCW 46.20.391(1),)) The person shall have the burden of proving that he or she ((is engaged in an occupation or trade)) meets one or more of the qualifying circumstances described in subsection (4)(e) of this section that makes it essential to operate a motor vehicle.

     (7) ((If the person is eligible for an occupational driver's license under RCW 46.20.391(2), the person shall have the burden of proving that he or she is in an apprenticeship program or on-the-job training program, or is in a program that assists persons who are enrolled in a WorkFirst program, or is undergoing substance abuse treatment or is participating in meetings of a twelve-step group such as alcoholics anonymous, that makes it essential that the person operate a motor vehicle.

     (8))) In the event that the person fails to appear for the hearing, no hearing shall be held. The case shall be remanded to the department and the department's previous decision denying the occupational/temporary restricted driver's license shall be affirmed.

[Statutory Authority: RCW 46.01.110. 00-18-070, § 308-104-105, filed 9/1/00, effective 10/2/00. Statutory Authority: RCW 46.01.110 and 1989 c 178 §§ 3, 5, 8 and 16. 89-18-003, § 308-104-105, filed 8/24/89, effective 9/24/89. Statutory Authority: RCW 46.20.391, 46.01.110 and 46.65.020. 86-07-018 (Order DS 2), § 308-104-105, filed 3/12/86.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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