WSR 06-15-081

PERMANENT RULES

DEPARTMENT OF LICENSING


[ Filed July 14, 2006, 1:42 p.m. , effective August 14, 2006 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: Amends rules of procedure for hearings relating to proposed driver's license suspensions, revocations, and denials resulting from arrests for driving while under the influence of liquor or any drug, creates a new section in chapter 308-100 WAC providing for the continuance of a hearing contesting a commercial driver's license disqualification when a witness who has been subpoenaed fails to appear.

Citation of Existing Rules Affected by this Order: Amending WAC 308-103-020, 308-103-030, 308-103-040, 308-103-050, 308-103-070, 308-103-080, 308-103-090, 308-103-100, 308-103-110, 308-103-120, 308-103-150, 308-103-170, 308-103-180, and 308-103-190.

Statutory Authority for Adoption: RCW 46.01.110, 46.20.308, 46.25.120.

Adopted under notice filed as WSR 06-02-037 on December 28, 2005.

Changes Other than Editing from Proposed to Adopted Version: WAC 308-103-040(7) is changed to make it clear that a petitioner who is applying for a waiver of the hearing fee because of indigence is to send the hearing request to the same address as a petitioner who is entitled to a waiver.

WAC 308-103-070(10) is changed to make it clear that action taken by a hearing officer to enforce a subpoena issued on the petitioner's behalf is considered to be at the request of the petitioner for purposes of WAC 308-103-070(6).

WAC 308-103-090(2) is changed to include the internet address where a department-approved subpoena form is available.

WAC 308-103-090(3) is changed to permit service of subpoena by certified mail if preapproved by the hearing officer, and to restore the provision that service of a subpoena on a law enforcement officer may be effected by serving the subpoena upon the officer's employer.

WAC 308-103-150 (9) and (10) are changed to make it clear that the petitioner has an opportunity to request a continuance if needed for cross-examination and rebuttal of evidence admitted by the hearing officer during the hearing.

WAC 308-103-190(9) is changed to restore the requirement that a final order be issued in instances where the hearing officer is denying a driver's petition for reconsideration.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.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

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 6, 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: July 14, 2006.

Becky Loomis

Assistant Director


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

WAC 308-103-020   Definitions.   As used in this chapter, unless the context requires otherwise, the term:

(1) "Department" refers to the department of licensing;

(2) "Hearing" means a formal hearing as authorized and conducted pursuant to RCW 46.20.308(8);

(3) "Hearing office" refers to the physical location from which a hearing officer conducts hearings under RCW 46.20.308. Where appropriate, the term "hearing office" also refers to the staff assigned to a hearing office;

(4) "Hearing officer" means a person who is appointed by the director of the department to conduct hearings under RCW 46.20.308;

(5) "Legal representative" means an attorney licensed and authorized to practice law in the state of Washington;

(6) "Petitioner" refers to a driver subject to the provisions of RCW 46.20.308 who has requested a hearing((;

(7) "Sworn report" means the document completed and filed with the department by the arresting officer in accordance with RCW 46.20.308 (6)(e), and which confers jurisdiction upon the department)).

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-020, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-030   Computation of time.   In computing any period of time prescribed or allowed by any applicable statute or rule, ((the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. Nothing contained herein is intended to extend the statutory requirement that a hearing be held within sixty days of a petitioner's arrest)) RCW 1.12.040 shall apply, except in the service of subpoenas as provided in WAC 308-103-090.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-030, filed 5/3/02, effective 6/3/02.]


AMENDATORY SECTION(Amending WSR 04-20-013, filed 9/24/04)

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)) submit his or her formal request for hearing:

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

(b) Within thirty days of 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 a 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. The petitioner may request a hearing on-line if the petitioner meets the qualifications described on the web site at www.dol.wa.gov;

(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 a hearing shall be submitted to the Department of Licensing, Driver Services Division, Hearings & Interviews, P.O. Box 9048, Olympia, Washington 98507-9048. If the petitioner is entitled to or applying for a waiver of the filing fee because of indigence, the request must be submitted to the Department of Licensing, Driver Services Division, Hearing & Interviews, P.O. Box 9031, Olympia, Washington 98507-9031;

(8) The written request for hearing shall be accompanied by ((a)) the applicable 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. 04-20-013, 308-103-040, filed 9/24/04, effective 10/25/04; 02-11-011, 308-103-040, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-050   Scheduling -- Notice of hearing.   (1) Upon receipt of a timely request for a hearing, the department shall schedule a telephone hearing ((to be held within sixty days following arrest, or sixty days following 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) The petitioner or petitioner's legal representative may state a preferred range of hearing dates or unavailable dates. To the extent that such requests can be accommodated within the applicable time limits and hearing officer availability, the department will attempt to do so.

(3) The department shall ((provide ten days written notice to the petitioner or petitioner's legal representative of the scheduled date and time)) mail a hearing notice to the petitioner or petitioner's legal representative at least ten days prior to the date of the hearing.

(4) The department's scheduling notice and brochure will include the assigned hearing ((office(r)'s)) officer's name, ((address, and)) a phone number((; a statement of the issues; the procedure for requesting subpoena(s); the policy on continuances;)) at which he or she may be contacted, and other information concerning the administrative hearing. The department's notice will also include a telephone number and a TDD number that any party or witness may call to request special accommodations.

(5) The petitioner or petitioner's legal representative may request that all or part of the hearing be conducted "in person." Such request ((should)) must be in writing stating the reasons therefore and directed to the assigned hearing ((office(r))) officer immediately upon receipt of the scheduling notice. The hearing ((office(r))) officer will have the sole discretion to grant or deny this request, and may require a waiver of the sixty-day hearing requirement as a condition to granting the request. ((Considerations will include whether the hearing officer can be available in the petitioner's county of arrest on the scheduled date of the hearing, the number and location of witnesses, and the basis of this request.))

(6) Each party shall ensure that his or her address and telephone number on file is correct and shall immediately notify the department and/or hearing officer of any change of address or telephone number that occurs during the course of the proceeding.

(7) The administrative hearing may be reassigned to a different hearing officer without notice to the parties ((because of scheduling conflicts, illness, injuries, unavailability, or emergencies)).

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-050, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-070   Continuances.   (1) After a hearing has been scheduled, it may be continued, rescheduled, or adjourned only at the discretion of the hearing officer.

(2) Requests for a continuance, reschedule, or adjournment must be made in writing, to the assigned hearing officer, and shall include the basis for the request.

(3) Except in the case of an emergency, the hearing officer must receive the continuance request at least two business days before the scheduled hearing. Absent an emergency, requests made with less than two business days' notice may be summarily denied.

(4) The hearing officer may ((grant a continuance, adjournment)) continue, adjourn, or reschedule at any time, including on the date of the administrative hearing.

(5) Hearings that are continued, rescheduled, or adjourned may be reset to a date within sixty days of the driver's arrest, or within sixty 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, unless a written waiver of the sixty-day hearing requirement of RCW 46.20.308 accompanies the written continuance request, or unless the petitioner is deemed to have "waived" the statutory time frame.

(6) A petitioner is deemed to have waived the statutory requirement that the hearing be held within sixty days if petitioner requests an action that cannot be accommodated within the sixty-day period.

(7) A party shall not consider a hearing continued, rescheduled, or adjourned until notified by the hearing officer ((that the request has been granted)).

(8) The hearing officer may require the party who requests a continuance, reschedule, or adjournment to submit documentary evidence that substantiates the reason for the request.

(9) A second request for a continuance, reschedule, or adjournment will only be granted in the event of an extreme emergency.

(10) Notwithstanding any provisions of this section to the contrary, a hearing officer may continue a hearing in the event a law enforcement officer who has been subpoenaed as a witness fails to appear. The hearing officer must continue a hearing in the event a law enforcement officer who has been subpoenaed as a witness fails to appear and the petitioner is a holder of a commercial driver's license or was operating a commercial motor vehicle at the time of the driver's arrest. A hearing continued under this subsection must be adjourned until such time as the subpoena may be enforced under RCW 7.21.060. Action taken by the hearing officer to enforce a subpoena issued on the petitioner's behalf is considered to be at the request of the petitioner for purposes of WAC 308-103-070(6).

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-070, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-080   Deferred prosecutions -- Withdrawals.   (1) In the event a petitioner elects to seek a deferred prosecution ((and is eligible for a stay of the administrative suspension)), the petitioner shall notify the assigned hearing officer and file a notice of Intent to Seek Deferred Prosecution, on a form provided by the department, with the hearing officer or the department. ((Upon doing so, the hearing officer will make a determination whether any hearing scheduled in the matter should be canceled and the petitioner's temporary license, if eligible, should be extended as provided by WAC 308-103-170. If, for any reason, the petitioner does not obtain an order of deferred prosecution from the court, the department will set a new hearing date only if the petitioner requests a hearing by contacting the original hearing officer no later than one hundred thirty days from the date of the arrest, and prior to the expiration of the temporary license. In the absence of such a timely request, the petitioner waives his or her right to a hearing and the department will issue the previously stayed order of suspension or revocation)) To be eligible for a stay, the petitioner must not have previously entered a deferred prosecution program, must have taken the breath or blood test, and must indicate that he or she intends to seek a deferred prosecution. If the petitioner is eligible, a stay of the administrative action shall be entered on the driver's record pursuant to RCW 46.20.308(10). If the petitioner is not eligible, he or she will be so notified by the department and the administrative action will continue.

(2) If a stay is entered under subsection (1) of this section, the hearing will proceed and the results will be sent to the petitioner. As provided by RCW 46.20.308(10), the stay of the action shall continue but any appeal of the Findings and Conclusion must be undertaken within thirty days of service of the results.

(3) If the petitioner elects to withdraw his or her request for a hearing, he or she ((shall)) must notify the department in writing of his or her intent to do so. Upon receiving such a request for a withdrawal, the department shall proceed with the administrative action against the petitioner's driving ((license)) privilege, unless a stay has been entered on the driver's record due to the filing of a notice of Intent to Seek a Deferred Prosecution.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-080, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-090   Subpoenas.   (1) Subpoenas shall be issued and enforced, and witness fees paid, as provided in RCW 46.20.308(8). All subpoenas shall direct the witness to appear by telephone unless otherwise agreed to by the hearing officer.

(2) Every subpoena shall be submitted on a form approved by the department, available on the Internet at www.dol.wa.gov, and must be signed and issued by a hearing officer ((and shall identify the party requesting the issuance of the subpoena and shall state the name of the agency and the title of the proceeding and shall command the person to whom it is directed to appear in person or telephonically and give testimony or produce designated books, documents, or things under his or her control)). An approved form may be obtained from the department.

(a) A subpoena to a person to provide testimony at a hearing shall specify the time and place set for hearing.

(b) A subpoena duces tecum requesting a person to produce designated books, documents, or things under his or her control shall specify a time and place for producing the books, documents, or things. That time and place may be the time and place set for hearing, or another reasonably convenient time and place in advance of the hearing.

(3) A subpoena ((may)) must be personally served by ((any)) a suitable person over eighteen years of age, by exhibiting and reading it to the witness, or by giving him or her a copy thereof, or by leaving such copy at the place of his or her abode. ((When service is made by any person other than an officer authorized to serve process,)) Proof of service shall be made by affidavit or declaration under penalty of perjury. Service by certified mail must be pre-approved by the hearing officer. Service of a subpoena on a law enforcement officer may be effected by serving the subpoena upon the officer's employer.

(4) The hearing officer may condition issuance of the subpoena upon advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(5) A subpoena must be properly served ten days prior to the date of the hearing, excluding weekends and holidays, in order to have full force and effect.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-090, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-100   Evidence -- Exhibits.   (1) All rulings upon objections to the admissibility of evidence shall be made in accordance with the provisions of these rules.

(2) When only portions ((only)) of a document are to be relied upon, the offering party shall identify the pertinent excerpts and state the purpose for which such materials will be offered. Only the excerpts, in the form of copies, shall be received in the record. However, the whole of the original documents, except any portions containing confidential material protected by law, shall be made available for examination and for use by all parties.

(3) The refusal of a witness to answer any question which has been ruled to be proper shall, in the discretion of the hearing officer, be ground for striking all testimony previously given by such witness on related matter.

(4) Evidence is admissible if received prior to, or during, the hearing.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-100, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-110   Video evidence(( -- Video tapes)).   (((1) If a video tape is submitted by a law enforcement officer, the officer shall submit two copies.

(2))) If the petitioner wishes to submit ((a)) video ((tape as)) evidence, the petitioner shall be responsible for the costs of preparing a copy to be admitted as evidence. Video ((tapes)) evidence shall be submitted sufficiently in advance of the hearing to allow the hearing officer the opportunity to review ((the tape)) it prior to the hearing. The hearing officer may require a time waiver from the petitioner in order to reschedule the hearing and satisfy this provision when needed.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-110, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-120   Evidence.   (1) The hearing officer shall rule on the admissibility and weight to be accorded to all evidence submitted at the hearing. Evidence, including hearsay evidence, is admissible if in the judgment of the hearing officer it is the kind of evidence on which reasonably prudent persons are accustomed to rely on in the conduct of their affairs. The hearing officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious. The admissibility of evidence shall be liberally construed to effect the intent and purpose of the hearings covered by these rules.

(2) Law enforcement officers or other persons with knowledge relevant to the hearing may appear and testify without notice. Such testimony shall not preclude the admissibility of any documents submitted.

(3) Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.

(4) Official notice may be taken of (a) any judicially cognizable facts, (b) technical or scientific facts within the agency's specialized knowledge, and (c) codes or standards that have been adopted by an agency of the United States, of this state or of another state, or by a nationally recognized organization or association. Parties shall be notified either before or during the hearing of the material so noticed and the sources thereof and they shall be afforded an opportunity to contest the facts and materials so noticed. A party proposing that official notice be taken may be required to produce a copy of the material to be noticed.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-120, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-150   Conduct of hearings.   Hearings are open to public observation. To the extent that a hearing is conducted by telephone or other electronic means, the availability of public observation is satisfied by giving members of the public an opportunity to hear or inspect the agency's record. The hearing officer's authority includes, but shall not be limited to, the authority to:

(1) Determine the order of presentation of evidence;

(2) Administer oaths and affirmations;

(3) Issue subpoenas pursuant to RCW 46.20.308(8);

(4) Rule on procedural matters, objections, and motions;

(5) Rule on offers of proof and receive relevant evidence;

(6) Order the exclusion of witnesses upon a showing of good cause;

(7) Afford the petitioner the opportunity to respond, present evidence, conduct cross-examination, and submit rebuttal evidence. The hearing officer may question witnesses to develop any facts deemed necessary to fairly and adequately decide the matter;

(8) Call additional witnesses and request and/or obtain additional exhibits deemed necessary to complete the record and receive such evidence subject to full opportunity for cross-examination and rebuttal by the petitioner;

(9) Examine and admit the official records of the department, subject to full opportunity, including the opportunity to request a continuance if needed, for cross-examination and rebuttal by the petitioner;

(10) Examine and admit public records, including but not limited to maps, policy and procedure manuals, breath testing equipment manuals and the Washington state patrol breath test section web site at any time before and during the hearing, subject to full opportunity, including the opportunity to request a continuance if needed, for cross-examination and rebuttal by the petitioner;

(((10))) (11) Regulate the course of the hearing and take any appropriate action necessary to maintain order during the hearing;

(((11))) (12) Permit or require oral argument or briefs and determine the time limits for submission thereof;

(((12))) (13) Issue an order of default;

(((13))) (14) Recess the hearing to a later time to accommodate scheduling conflicts. Hearings are ordinarily scheduled to be one hour in length;

(((14))) (15) Take any other action necessary and authorized by any applicable statute or rule; and

(((15))) (16) Waive any requirement of these rules unless petitioner shows that he or she would be prejudiced by such a waiver.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-150, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-170   Temporary license.   A temporary license issued by a law enforcement officer pursuant to RCW 46.20.308 may be extended when:

(1) A hearing is conducted and a decision on the outcome of the hearing is taken under advisement by the hearing officer; or

(2) A hearing is continued or rescheduled outside of the initial sixty-day effective period of the temporary license((; or

(3) Petitioner is seeking a deferred prosecution and requests an extension of the temporary license.

Extensions may be made to a maximum of one hundred fifty days from the date of arrest. Nothing contained herein shall effect the validity of any other action taken against the petitioner's driving privilege by the department, or authorize a petitioner to drive if his or her driving privilege has been suspended or revoked for other reasons)).

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-170, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-180   Final order.   Every decision and order shall:

(1) Be correctly captioned as to the name of the department of licensing and name of the proceeding;

(2) Designate all parties and representatives participating in the proceeding;

(3) Contain a final order disposing of all contested issues ((and setting the effective date for the order)); and

(4) Contain a statement describing the right to appeal.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-180, filed 5/3/02, effective 6/3/02.]


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

WAC 308-103-190   Reconsideration and appeals.   (1) The petitioner's rights to appeal are provided in RCW 46.20.308(9), and nothing herein is intended to detract from that statute.

(2) Grounds for a petition for reconsideration are limited to evidence or legal argument which are material to the petitioner and ((that by the exercise of reasonable diligence the petitioner or petitioner's legal representative did not and could)) were not ((have)) produced at the time of the hearing, or for other good and sufficient reason as determined by the hearing officer.

(3) The petition must state with particularity any new evidence or new legal argument that is proposed and why it ((was not available at the time of)) could not have been discovered using due diligence prior to the hearing. The petition must specify with particularity the portions of the initial order to which the petition applies.

(4) A petition for reconsideration of a final order shall be filed with the hearing officer who signed that final order, within ten days of the date ((that the hearing officer signed it)) the final order is mailed to the petitioner.

(5) The petition shall be ((disposed of)) reviewed by the hearing officer who entered the original final order, if reasonably available. The disposition shall be in the form of a written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and setting the matter for further hearing.

(6) If the petition is granted in whole or in part, a new order shall be issued in the same form as the original order, and shall include the designation "amended" in its title. This amended order shall reference the petition for reconsideration in its preamble, which sets out what the hearing officer considered. Any amended order shall include the "Findings of Fact and Conclusions of Law" from the original final order with amendments.

(7) The relief granted pursuant to a petition for reconsideration is limited to review of the designated evidence and/or argument as identified in the petition. At the hearing officer's discretion, a supplemental hearing may be scheduled. Such a petition is not grounds for a new hearing, and the record already established shall remain undisturbed.

(8) A petition for reconsideration does not stay the department's action on the petitioner's driving privilege as ordered by the original final order. A petitioner seeking a stay must file a separate petition for that purpose. The hearing officer will grant a stay only if the hearing officer determines that it is likely that the petitioner will prevail and the action be reversed and that denying the stay will create irreparable harm to the petitioner. If the hearing officer grants such a petition for a stay, the hearing officer shall sign an order releasing the action and crediting any time already served, and subsequently sign an order sustaining or reversing the action, as determined by the amended final order. Disposition denying a stay is not subject to review.

(9) An amended final order shall ((issue)) be issued either denying reconsideration or, in the event reconsideration is granted, dissolving or modifying the original final order. The date of the amended final order begins the thirty-day period for the petitioner to appeal the amended final order, and there is no longer a right to appeal the original final order.

(10) The filing of a petition for reconsideration is not a prerequisite for filing an appeal. An order denying reconsideration is not subject to appeal.

[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, 308-103-190, filed 5/3/02, effective 6/3/02.]


NEW SECTION
WAC 308-100-400   Formal hearings -- Continuances.   (1) After a hearing has been scheduled pursuant to RCW 46.25.120(5), it may be continued, rescheduled, or adjourned only at the discretion of the hearing officer.

(2) A hearing officer must continue a hearing scheduled pursuant to RCW 46.25.120(5) in the event a law enforcement officer whose attendance is required fails to appear. A hearing continued under this subsection must be adjourned until such time as the officer may be compelled to attend by issuance of a subpoena under RCW 46.20.332. A subpoena issued to compel the attendance of an officer is subject to enforcement under RCW 7.21.060.

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