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Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.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.
(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.]
[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, § 308-103-030, filed 5/3/02, effective 6/3/02.]
(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
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
(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.]
(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
(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.]
(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
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.]
(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.]
(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
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.]
(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.]
(2))) If the petitioner wishes to submit ((
(( 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.]
(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.]
(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
(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
[Statutory Authority: RCW 46.01.110 and 46.20.308. 02-11-011, § 308-103-150, filed 5/3/02, effective 6/3/02.]
(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((
(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.]
(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
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.]
(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.]
(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.