Original Notice.

     Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

     Title of Rule: Rules of procedure for hearings conducted under RCW 46.20.308.

     Purpose: Adopts rules of procedure for hearings relating to proposed driver's license suspensions and revocations resulting from arrests for driving while under the influence of intoxicating liquor or any drug.

     Statutory Authority for Adoption: RCW 46.01.110 and 46.20.308.

     Statute Being Implemented: RCW 46.20.308.

     Summary: Creates a new chapter in Title 308 WAC adopting procedural rules regarding agency hearings under RCW 46.20.308.

     Reasons Supporting Proposal: Provides guidance regarding procedures, practices, and requirements relating to agency hearings.

     Name of Agency Personnel Responsible for Drafting: Clark J. Holloway, Highways-Licenses Building, (360) 902-3846; Implementation and Enforcement: Denise Movius, Highways-Licenses Building, (360) 902-3850.

     Name of Proponent: Department of Licensing, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: WAC 308-103-010 Applicability, governs applicability and conditions of proposed rules; WAC 308-103-020 Definitions, provides definitions of terms as used in this chapter; WAC 308-103-030 Computation of time, provides rules for computation of time periods; WAC 308-103-040 Requests for hearings, governs procedure for requesting hearings held under RCW 46.20.308; WAC 308-103-050 Scheduling -- Notice of hearing, governs scheduling of hearings; WAC 308-103-060 Notice of appearance, governs notice of legal representation; WAC 308-103-070 Continuances, governs the granting of continuances of scheduled hearings; WAC 308-103-080 Deferred prosecutions -- Withdrawals, governs procedures where a petitioner seeks deferred prosecution; WAC 308-103-090 Subpoenas, governs procedures for issuing and enforcing subpoenas; WAC 308-103-100 Evidence -- Exhibits, governs the use of exhibits and testimony as evidence; WAC 308-103-110 Evidence -- Video tapes, governs use of video tapes as evidence; WAC 308-103-120 Evidence, governs admissibility of evidence; WAC 308-103-130 Interpreters, provides procedures for the use of interpreters; WAC 308-103-140 Testimony under oath or affirmation, provides that testimony must be given under oath or affirmation; WAC 308-103-150 Conduct of hearings, governs the conduct of hearings and details hearing officer's authority; WAC 308-103-160 Defaults, provides procedures when petitioner or legal representative fails to appear; WAC 308-103-170 Temporary licenses, provides for the extension of temporary licenses by a hearings officer; WAC 308-103-180 Final order, details the format of final orders issued by hearings officers; and WAC 308-103-190 Reconsideration and appeals, governs requests for reconsideration of final orders, amended orders, and appeals.

     Proposal does not change existing rules. Amends WAC 308-08-600 to include appropriate administrative rule references.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business impact statement is not required pursuant to RCW 19.85.025(3).

     RCW 34.05.328 does not apply to this rule adoption. The rules are procedural rules that apply to procedures, practices, and requirements relating to agency hearings.

     Hearing Location: Highways-Licenses Building, Conference Room 413, 1125 Washington Street S.E., Olympia, WA, on November 27, 2001, at 2:30 p.m.

     Assistance for Persons with Disabilities: Contact Clark J. Holloway by November 26, 2001, TTY (360) 664-0116.

     Submit Written Comments to: Clark J. Holloway, Department of Licensing, P.O. Box 9030, Olympia, WA 98507-9030, fax (360) 586-8351, by November 26, 2001.

     Date of Intended Adoption: November 28, 2001.

October 22, 2001

Denise M. Movius

Assistant Director

RULES OF PROCEDURE FOR HEARINGS

CONDUCTED UNDER RCW 46.20.308
NEW SECTION
WAC 308-103-010   Applicability.   These rules apply to hearings conducted pursuant to RCW 46.20.308. However, the hearing officer may waive the application of any of these rules in the interests of justice or to further administrative convenience, expedition, and economy if: (1) The waiver does not conflict with law; and (2) The waiver does not cause undue prejudice.

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

     (2) "Fax" means electronic telefacsimile transmission;

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

     (4) "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;

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

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

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

     (8) "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.

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     (1) The petitioner must file his or her formal request for hearing:

     (a) Within thirty days of arrest if the petitioner submitted to a breath test;

     (b) Within thirty days of arrest 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 Service's 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.

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     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.
NEW SECTION
WAC 308-103-050   Scheduling -- Notice of hearing.   (1) Upon receipt of a 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 of the hearing.

     (4) The department's scheduling notice will include the assigned hearing office(r)'s name, address, and phone number; a statement of the issues; the procedure for requesting subpoena(s); the policy on continuances; 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 be directed to the assigned hearing office(r) immediately upon receipt of the scheduling notice. The hearing office(r) 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.

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     (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, or reschedule at any time, including on the date of the administrative hearing.

     (5) Hearings that are continued, rescheduled, or adjourned may be re-set 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.

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     (2) If the petitioner elects to withdraw his or her request for a hearing, he or she shall 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.

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     (2) Every subpoena shall 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.

     (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 be served by any 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 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.

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     (2) When 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.

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     (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 shall be submitted sufficiently in advance of the hearing to allow the hearing officer the opportunity to review the tape 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.

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     (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.

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     (a) If a hearing impaired person is a party or witness to an adjudicative proceeding, a qualified interpreter shall be appointed to interpret the proceedings. Under RCW 2.42.050, a "qualified interpreter" means a visual language interpreter who is certified by the state or is certified by the registry of interpreters for the deaf.

     (b) Whenever an interpreter is appointed to assist a non-English-speaking person, a qualified or certified interpreter shall be appointed to assist the person during the hearing. Under RCW 2.43.020, a "qualified interpreter" means a person who is able readily to interpret or translate spoken and written English for a non-English-speaking person. A "certified interpreter" means an interpreter who is certified by the office of the administrator for the courts.

     (2) Relatives of any participant in a proceeding and employees of the department involved in a proceeding shall not be appointed as interpreters in the proceeding unless authorized by the petitioner.

     (3) Mode of interpretation:

     (a) The consecutive mode of foreign language interpretation shall be used unless the hearing officer and interpreter agree that simultaneous interpretation will advance fairness and efficiency;

     (b) Interpreters for hearing impaired persons shall use the simultaneous mode of interpretation unless an intermediary interpreter is needed. If an intermediary interpreter is needed, interpreters shall use the mode that the interpreter considers to provide the most accurate and effective communication with the hearing impaired person;

     (c) When an impaired or non-English-speaking person is a party to a proceeding, the interpreter shall translate all statements made by other hearing participants, unless waived by the petitioner. The hearing officer shall ensure that sufficient extra time is provided to permit translation and the hearing officer shall ensure that the interpreter translates the entire proceeding to the party to the extent that the party has the same opportunity to understand all statements made during the proceeding as a non-impaired or English-speaking party listening to un-interpreted statements would have.

     (4) The department shall pay interpreter fees and expenses.

     (5) Every interpreter shall, before beginning to interpret, take an oath that a true interpretation will be made to the person being examined of all the proceedings in a language or in a manner which the person understands, and that the interpreter will repeat the statements of the person being examined to the hearing officer conducting the proceedings, in the English language, to the best of the interpreter's skill and judgment.

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     (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 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 the official records of the department;

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

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

     (12) Issue an order of default;

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

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

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

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

     (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.

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     (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.

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     (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 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 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.

     (5) The petition shall be disposed of 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 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.

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[Order MV-141, § 308-08-600, filed 7/27/72.]

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