Washington’s DUI laws are among the toughest in the nation. Mandatory license suspension accompanies every DUI arrest where the breath test was refused or where the breath test was at or above the legal limit. If you are a Washington State licensed driver and you have been arrested for DUI, you should know the appropriate steps to take to protect your license. In most cases, the officer who made the DUI arrest will have given you a DUI Hearing Request form. You must legally inform the Department of Licensing that you wish to save your license if you want a chance to avoid the mandatory automatic suspension. The instructions for doing so are listed on the “Driver’s Hearing Request” form that the arresting officer should have given to you. If you did not receive it, it may be downloaded here. The most important thing to remember at this point is that you only have 20 days from the date of the arrest (or, as the law puts it “from receipt of notice”) to request a hearing. It is a wise idea to consult with an attorney immediately after a DUI arrest so that you can be sure you are taking the correct steps.
The Department of Licensing has two mechanisms by which you may request an administrative hearing to fight the suspension of your license. First, you may send in the form mentioned above by mail. Be sure to obtain proof that you mailed it in a timely manner. Most often, this is either by certified mail or by obtaining a “certificate of mailing” from the post office at the time of mailing. Also, bear in mind that the Department of Licensing will not honor your request for a hearing to fight for your license if you do not also include the $375 fee with the hearing request (except in the case of indigent citizens). The second way that you can request a hearing is to do so online. Washington state DUI defense attorneys differ in their approach on this point as some attorneys believe that it is best to mail the form, whereas others believe that requesting a hearing online is the better procedure. In any event, be sure not to miss the 20 day deadline because if you do, the DOL does not have to grant you a hearing to fight to save your license.
In most cases, within about two weeks after a DUI arrest, the driver will receive a letter from the Department of Licensing stating that the license has been suspended for 90 days or more depending upon circumstances. Some people, upon receipt of this letter, think that it is useless to request a hearing since the Department has already made up its mind. Do not make this mistake. After a DUI arrest where the breath test is over the legal limit or the driver has refused to take the test, the arresting officer is required to send a “sworn report” to the Department of Licensing. The Department automatically issues the order of suspension based on this sworn report. The driver still has the opportunity to request a hearing to fight this order of suspension, provided that the hearing request form is sent within 20 days of the date of arrest (or receipt of the form.) By sending in the form, you are saying to the Department of Licensing: “I will require you to legally prove that there is a basis to suspend my license.” Once the form has been sent to DOL, the burden shifts to the Department of Licensing to set an administrative hearing where the Department of Licensing must legally justify the license suspension. The hearing must be set within 60 days of the date of the arrest. The Department is required to provide legal proof and this generally takes the form of a copy of the police report and a declaration under penalty of perjury by the arresting officer that the report is true.
The burden of proof on the Department of Licensing is lower than the burden of proof in a criminal case. Whereas in a criminal case the burden of proof is “beyond a reasonable doubt,” the Department of Licensing administrative hearing is a civil administrative quasi-judicial action and therefore, the burden of proof on the Department of Licensing is by “a preponderance.” In addition, in most cases the hearing itself is held by telephone, and the arresting officer is not required to participate unless subpoenaed. This doesn’t sound like much of a hearing to the average citizen. Further, (and this is the part that surprises most people), the functions of “prosecutor” and “judge” are performed by the same person—an employee of the Department of Licensing. It is no wonder that it is difficult to prevent license suspension given the way the system is set up. However, there are legal defenses that can be presented including whether there was probable cause to detain or arrest the driver, whether the proper legal advisements were given to the driver, whether the breath test was properly administered, and whether the breath test is accurate in the scientific sense.
If the driver wins the Department of Licensing administrative hearing, the underlying DUI charge must still be defended if the license is to be saved, for a DUI conviction carries a suspension or revocation of license a separate and apart from the administrative consequences discussed above. If the Department of Licensing sustains the order of suspension or revocation, the driver then must decide whether to apply for an Ignition Interlock License, further appeal the Department of Licensing decision, or both. These are tactical and practical decisions that merit further discussion in light of your particular circumstances.
It is commonly said that driving his “a privilege and not a right.” Legally speaking, this is a correct statement of the law. However, it is also true that driving is a necessity for people who need to get to and from work, who have day care concerns, who live in rural areas, or who are not served by public transportation.
Questions? Call Jon Fox at (425) 274-9190.