Purpose: 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 persons's driving privileges following an arrest for an alcohol-related traffic offense.

     Citation of Existing Rules Affected by this Order: Amending WAC 308-103-040.

     Statutory Authority for Adoption: RCW 46.01.110 and 46.20.308.

      Adopted under notice filed as WSR 04-17-122 on August 17, 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     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: September 24, 2004.

Denise M. Movius

Assistant Director

     (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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