For purposes of this chapter, the following words have the following meanings:

(1) "Aggravating factors" are circumstances that elevate a low level violation to a high level violation as defined by department policy.

(2) "Appeals panel" means three reviewing ((officers))staff designated by the secretary with the authority to review ((hearing officers' decisions, and to affirm, reverse, or modify decisions and sanctions in accordance with RCW 9.94A.737.

(2)))offender appeals of department findings and imposed sanctions.

(3) "Business day" means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, except for holidays observed by the state of Washington.

(4) "Community corrections officer" means ((an employee of the department responsible for carrying out specific duties concerning the supervision of sentenced offenders and monitoring of sentence conditions.

(3)))community corrections officer as defined by RCW 9.94A.030.

(5) "Community custody" means ((that portion of an offender's sentence of confinement in lieu of earned release time served in the community subject to controls placed on the offender's movement and activities by the department. Offenders supervised on community custody include those subject to community placement (as defined in RCW 9.94A.030), drug offender sentencing alternative (as described in RCW 9.94A.505), community custody for a sex offense (as described in RCW 9.94A.505), community custody max, first-time offender waiver (as described in RCW 9.94A.505), or a work ethic camp program (as defined in RCW 9.94A.030), and those sentenced to community custody by the court for crimes committed on or after July 1, 2000, whose sentence is less than one year of confinement. For purposes of this subsection, "community custody max" means a term of community custody for certain sex offenders who have completed their maximum sentences of confinement.

(4)))community custody as defined by RCW 9.94A.030.

(6) "Department" means the ((Washington state department of corrections.

(5) "Deputy secretary" means the deputy secretary of the prisons division of the department, or the deputy secretary's designee.

(6) "Graduated sanction system" means structured incremental responses designed to reduce risk to the public, effectively intervene in noncompliant behavior, where possible, repair harm to the community, and make efficient use of limited state resources. Sanctions may include, but are not limited to, partial or total confinement; home detention with electronic monitoring; work crew; community service; inpatient treatment; daily reporting; curfew; educational or counseling sessions; supervisions enhanced through electronic monitoring; or any other sanctions available in the community))department of corrections.

(7) "Ex parte communication" means any predisposition communication between the hearing officer and a party or other individual on behalf of that party regarding the department hearing and the merits of the matter without notice and opportunity for all parties to participate.

(8) "Hearing officer" means an employee of the department authorized to conduct department hearings.

(((8)))(9) "Hearings ((program manager))administrator" means the ((manager))administrator of the hearings unit of the department((, or the hearings program manager's designee)).

(((9)))(10) "High level violations" means that the violations must be directly related to a condition of supervision as per department policy.

(11) "Low level violations" means any violations not listed as high as per department policy.

(12) "Mitigating factors" are circumstances that may warrant a reduced violation response.

(13) "Offender" means any person in the custody of or subject to the jurisdiction of the department.

(((10)))(14) "Partial confinement" means ((confinement in a facility or institution operated or utilized under contract by the state or by any other unit of government, to include, but not be limited to, work release, treatment center, residential facility, or home detention with electronic monitoring.

(11) "Probable cause" means a determination, made by a hearing officer, that there is cause to believe a violation has occurred.

(12) "Secretary" means the secretary of the department, or the secretary's designee.

(13) "Stipulated agreement" means an agreement between the offender and the department in which the offender admits violations and agrees to comply with intermediate sanctions. For the purposes of this subsection, "intermediate sanction" means department-imposed sanctions that are served in the community rather than total confinement.

(14) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, to include, but not be limited to, adult correctional facilities, camp and prerelease facilities or a county or municipal jail.

(15) "Working day" means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, except for holidays observed by the state of Washington))partial confinement as defined by RCW 9.94A.030.

(15) "Total confinement" means total confinement as defined by RCW 9.94A.030.

(16) "Violation" means willful noncompliance with a court-ordered or department-imposed condition, requirement or instruction.

(17) "Violation process" means the process by which the court or the department addresses one or more alleged violations.

(1) The state and its officers, agents, and employees may not be held criminally or civilly liable for violation response decisions made in accordance with law per RCW 9.94A.737.

(2) The sanction the department imposes shall be determined by the offender's violation behavior and prior violation processes and shall be reasonably related to the crime of conviction, the violation committed, the offender's risk of reoffending, or the safety of the community. The department's response to violation behavior will be defined by department policy.

(3) A community custody offender who violates any court-ordered or department-imposed condition, requirement, or instruction will be sanctioned by the department as provided in RCW 9.94A.737, 9.94A.633, 9.94A.660, 9.94A.662, and 9.94A.6332.

(a) The sanction for an offender who commits a low level violation may be a nonconfinement sanction, or a total or partial confinement sanction of not more than three days.

(b) The sanction for an offender who commits a high level violation may be a nonconfinement sanction, or a total or partial confinement sanction of not more than thirty days, unless subject to return under RCW 9.94A.633 or revocation of an alternative sentence under RCW 9.94A.660 and 9.94A.662. The department will credit an offender's sanction time served pending the hearing or negotiated sanction review.

(i) The offender may be out of custody or held in total or partial confinement pending a formal hearing or negotiated sanction review.

(ii) The offender may be held in total or partial confinement to serve an imposed sanction for a high level violation as determined by department policy.

(((1) When placed on community custody, offenders shall be provided with written notice of all court and department-imposed conditions and/or requirements.

(2) If an offender is being held in total confinement prior to the hearing for allegedly violating conditions and/or requirements of community custody, the department shall, within three working days of a probable cause determination by the hearings unit, serve the notice of allegations, hearing and rights, and waiver form.

(a) Within three working days of the service of the notice of allegations, hearing and rights, and waiver form, the community corrections officer shall submit to the hearing officer and the offender, a report of alleged violations which shall contain the following: Alleged violations, a summary of facts supporting the allegations, and all other supporting documentary evidence relating to the violations to be introduced at the hearing. The report shall also contain a preliminary recommendation for disposition.

(b) Reports of alleged violations may be submitted electronically.

(3) The factual allegations may be amended and/or new allegations added at any time prior to the hearing, provided, the offender receives written notice of such new and/or amended allegations and all other supporting documentary evidence at least twenty-four hours prior to the hearing. The offender may waive the right to such notice at the hearing.

(4) Offenders who have allegedly violated conditions and/or requirements of community custody, but are not detained, shall be served with the notice of allegations, hearing and rights, and waiver form within thirty days of the community corrections officer becoming aware of the alleged violation behavior.

(a) A report of alleged violations and all other supporting documentary evidence shall be provided to the offender at least seven working days prior to the hearing.

(b) The report of alleged violations shall contain the following: Alleged violations, a summary of facts supporting the allegations, and the evidence relating to the violations to be introduced at the hearing. The report shall also contain a preliminary recommendation for disposition.

(5) Community corrections officers shall obtain interpretive services for offenders with known language or communication barriers when serving documents, and, if required, for the hearing.))(1) The department shall notify each offender on community custody of all court and department imposed conditions, requirements, and instructions and of the department's response to violation behavior.

(2) An offender alleged to have committed a low level violation will be provided notice of the alleged violation at the time the department's violation response is initiated and the offender will be provided an opportunity to respond.

(3) An offender alleged to have committed a high level violation has the right to a hearing prior to imposition of any sanction. The offender will receive notice of a pending hearing as follows:

(a) Written notice will be served upon the offender not less than twenty-four hours prior to the hearing. The offender may waive the right to such notice.

(b) Written notice to the offender will include, but is not limited to:

(i) The offender's rights, including rights specified in WAC 137-104-060 and the offender's right to file a personal restraint petition under court rules after the final decision of the department;

(ii) A copy of the judgment and sentence and the imposed conditions;

(iii) The alleged violation; and

(iv) The supporting evidence relating to the violations that will be introduced and relied upon by the department at the hearing.

(c) The alleged violations may be amended and new allegations added at any time prior to the hearing, provided the offender receives written notice of such new or amended allegations and all other supporting evidence at least twenty-four hours prior to the hearing. The offender may waive the right to such notice.

(1) ((Offenders accused of violating any of the conditions or requirements of community custody will be entitled to a hearing, prior to the imposition of sanctions by the department.

(2))) The hearing shall be conducted by a hearing officer in the department's hearing unit, and shall be considered as an offender disciplinary proceeding and shall not be subject to chapter 34.05 RCW, the Administrative Procedure Act.

(((3)))(2) Hearings for community custody offenders, who are being held in total confinement prior to a hearing, shall be conducted within five working days, but not less than twenty-four hours, after service of the notice of allegations, hearing and rights, and waiver form.

(((4) Hearings for community custody offenders who are not being held in total confinement shall be conducted within fifteen calendar days, but not less than twenty-four hours, after service of the notice of allegations, hearing and rights, and waiver form.

(5) If an offender is arrested and detained, without a warrant, for violation of conditions of supervision, a probable cause determination will be made by a hearing officer within three working days of the initial detention.

(6) Prior to the commencement of a hearing, the hearing officer shall verify that proper notice of the hearing has been given and that the offender was properly served with the notice of allegations, hearing and rights, and waiver form, given a copy of the report of alleged violations, and provided with all supporting documentary evidence.

(7) The hearing officer, if requested by the offender or the community corrections officer, shall conduct an administrative review of the violation report and any additional information submitted to determine whether there is reason to allow the offender to be conditionally released pending the violation hearing. Such administrative review will be conducted within twenty-four hours of the request for conditional release. Such release must be recommended by the reviewing hearing officer and authorized by the hearings program manager or his or her designee.

(8) A hearing shall be held in all instances when an offender is served with a notice of allegations, hearing and rights, and waiver form.

(9) Community custody hearings shall be electronically recorded on audio cassette tape and the hearing tape shall be retained by the department for twelve months. An offender, who is the subject of the hearing, may request a copy of the tape recording of that hearing by submitting a request in writing along with a blank tape.

(10) The offender may call witnesses to testify on his/her behalf at the hearing. The hearing officer may limit the number of witnesses and the scope of the testimony to matters relevant to the allegations and/or disposition.

(11)))(3) The hearing officer will:

(a) Administer oaths and affirmations;

(b) Ensure the hearing is electronically recorded;

(d) Verify the offender has received proper notice;

(e) Verify jurisdiction and foundation;

(f) Weigh the credibility of witnesses;

(g) Receive relevant evidence including hearsay evidence;

(h) Render or defer a decision;

(i) Specify on the record the basis for the findings and decisions;

(j) Provide a written hearing and decision summary to the parties; and

(k) Take any other actions necessary as authorized by the department policy, these rules, and applicable laws.

(4) The parties may call witnesses to testify at the hearing.

(a) The hearing officer may exclude witnesses or limit the scope of testimony to matters relevant to the allegations and/or disposition.

(b) Witnesses may be excluded and testimony may be limited to maintain the safety and security of the facility, offender, staff, or others.

(c) Witnesses may testify outside the presence of the offender when there is substantial likelihood that the witness will suffer significant psychological or emotional trauma if the witness testifies in the presence of the offender, or when there is substantial likelihood that the witness will not be able to give effective, truthful testimony in the presence of the offender. The hearing officer ((shall enter findings in the record, as to the necessity of such testimony, and))will provide the offender an opportunity to submit questions to be asked of the witness.

(((12)))(d) The hearing officer will state the basis for limiting testimony or excluding witnesses on the record.

(5) Community custody violation hearings shall be open to the public unless the hearing officer, for a specifically stated reason, closes the hearing in whole or in part.

(((13) At the hearing, the community corrections officer))(6) The department has the obligation of setting forth evidence supporting the allegations of violations and of offering recommendations for disposition.

(((14)))(7) The department has the obligation of proving each of the ((allegations of))alleged violations by a preponderance of the evidence.

(((15) The hearing officer shall:

(a) Administer oaths and affirmation;

(b) Issue warrants, as necessary;

(d) Rule on all procedural matters, objections and motions;

(e) Rule on offers of proof, and receive relevant evidence including hearsay evidence;

(f) Question witnesses called by the parties in an impartial manner to elicit any facts deemed necessary to fairly and adequately decide the matter;

(g) Render or defer a decision; and

(h) Take any other actions necessary and authorized by these rules and law.

(16) The))(8) Hearing officers may ((grant a request for a continuance of))continue the hearing ((as long as such continuation is granted)) for good cause ((and))if doing so does not unduly delay the hearing.

(9) Notice per WAC 137-104-040 is not required except the offender will be notified of the date and location of the continued hearing and will be provided any additional evidence supporting the allegations not less than twenty-four hours prior to the hearing unless the offender waives the right to such notice.

((The offender has the right to))(1) An offender subject to a department hearing has rights as specified in RCW 9.94A.737 and the right to:

(((1)))(a) Receive written notice ((of the alleged violations of the conditions/requirements of supervision.

(2)))in accordance with WAC 137-104-040, including the opportunity to examine, no later than twenty-four hours before the hearing, all supporting documentary evidence which the department intends to present during the hearing.

(b) Have an electronically recorded, community custody hearing conducted within five ((working))business days of ((service of the notice of allegations, hearing and rights, and waiver form))written notice; however, if the offender has not been placed in confinement, the hearing will be conducted within fifteen ((calendar))business days of ((service of the))written notice in accordance with RCW 9.9A.737.

(((3) Have))(c) A neutral and detached hearing officer conduct the hearing.

(((4) Examine, no later than twenty-four hours before the hearing, all supporting documentary evidence which the department intends to present during the hearing.

(5)))(d) Admit to any or all of the allegations, which may result in limiting the scope of the hearing.

(((6) Be present during the fact-finding and disposition phases of the hearing. If the offender waives his/her right to be present at the hearing, the department may conduct the hearing in the absence of the offender and may impose sanctions that could include loss of liberty of the offender.

(7)))(e) Be present during the hearing. An offender may waive the right to be present at the hearing or because of disruptive behavior, an offender may be removed from the hearing at the hearing officer's discretion; in both cases, the department will conduct the hearing in the offender's absence and may impose sanctions.

(f) Present the case to the hearing officer. If there is a language or communication barrier, the hearing officer may ((appoint someone))continue the hearing until a qualified individual is identified to interpret or otherwise assist((. However, no other person may provide representation in presenting the case. There is no right to an attorney or counsel.

(8)))in person or by means of an approved language line.

(g) Request counsel as established by department policy. Counsel may be provided if the hearing officer determines that counsel is necessary due to the complexity of the case or the offender's ability to represent himself or herself.

(h) Cross-examine witnesses ((appearing and)) testifying at the hearing.

(((9)))(i) Testify during the hearing or ((to)) remain silent. Silence will not be held against the offender.

(((10)))(j) Have witnesses provide written or oral testimony on ((his/her behalf, either in person or in a witnessed statement/affidavit; provided, however:

(a) In an in-custody hearing, outside witnesses may be excluded due to institutional concerns; or

(b) The hearing officer may exclude persons from the hearing upon a finding of good cause; or

(c) The hearing officer may exclude a witness from testifying at a hearing or may require a witness to testify outside of the offender's presence when there is a substantial likelihood that the witness will not be able to give effective, truthful testimony in the presence of the offender during the hearing. In either event, the offender may submit a list of questions to ask a witness. Testimony may be limited to evidence relevant to the issues under consideration.

(11)))the offender's behalf, unless the scope of testimony is limited or the witness is excluded by the hearing Officer under WAC 137-104-050.

(k) Request a continuance of the hearing for good cause as per department policy.

(l) Receive a written hearing and decision summary including the evidence presented, ((a))the finding of guilty or not guilty, ((and)) the reasons to support the findings of guilt, and the sanction imposed immediately following the hearing or, in the event of a deferred decision, within two ((working days.

(12) Receive a copy of the full department hearing report.

(13) Obtain a copy of the audio recording of the hearing, provided, the offender provides a blank audio cassette tape to be used for this purpose.

(14) Appeal to the regional appeals panel, in writing, within seven calendar days of receipt of the hearing and decision summary form. The offender may also file a personal restraint petition to appeal the department's final decision through the Washington state court of appeals.

(15)))business days. Offenders may waive the two business days' requirement.

(m) Obtain a copy of the electronic recording of the hearing upon written request.

(n) Appeal the hearing officer's decision pursuant to WAC 137-104-080.

(o) File a personal restraint petition.

(p) Waive any or all of the above rights in this section; and

(q) Waive the hearing and recommend a negotiated sanction.

(1) The offender may, within seven calendar days, appeal the ((decision of the hearing officer within seven calendar days to the appeals panel. The request for review should be submitted in writing and list specific concerns.

(2) The sanction shall be reversed or modified if a majority of the panel finds that the sanction was not reasonably related to the:

(a) Crime of conviction;

(b) Violation committed;

(d) Safety of the community.

(3)))findings and imposed sanctions to an appeals panel. The offender's appeal must be submitted in writing.

(2) The appeals panel shall affirm, reverse, modify, vacate, or remand the decision based on its findings.

(3) If a majority of the panel finds that the sanction was not reasonable, relative to the crime of conviction, the violation committed, the offender's risk of reoffending, or the safety of the community, then the appeals panel shall reverse, vacate, remand or modify the decision.

(4) The appeals panel will also examine evidence presented at the hearing ((and reverse)). If a majority of the panel finds that any finding of a violation was based solely on ((unconfirmed or unconfirmable allegations))allegations that were not, or could not be confirmed, then the appeals panel shall reverse, vacate, remand or modify the decision.