Martin v. Department of Licensing

306 P.3d 969, 175 Wash. App. 9
CourtCourt of Appeals of Washington
DecidedApril 30, 2013
DocketNo. 41718-9-II
StatusPublished
Cited by4 cases

This text of 306 P.3d 969 (Martin v. Department of Licensing) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. Department of Licensing, 306 P.3d 969, 175 Wash. App. 9 (Wash. Ct. App. 2013).

Opinion

Van Deren, J.

¶1 The State appeals the superior court’s order reversing the Washington State Department of Licensing’s (Department) decision to suspend Roger Martin’s personal driver’s license and disqualify his commercial driver’s license (CDL). The State argues that the implied consent warnings Martin received were accurate and not misleading and that Martin did not prove that the warnings prejudiced him. Martin cross appeals the superior court’s order, arguing that WAC 308-103-070(10), which requires a mandatory continuance of the Department’s hearing if a subpoenaed officer does not appear and the licensee has a [13]*13CDL, violates due process and equal protection because it unfairly burdens drivers who hold CDLs. Relying on our recent decision Lynch v. Department of Licensing, 163 Wn. App. 697, 262 P.3d 65 (2011) and Division One’s decision Allen v. Department of Licensing, 169 Wn. App. 304, 279 P.3d 963 (2012), we hold that the implied consent warnings given to Martin were not inaccurate or misleading and that Martin has not shown actual prejudice. We also hold that Martin waived the right to a hearing within 60 days under RCW 46.20.308(8)1 and that WAC 308-103-070(10) does not violate due process or equal protection as applied in this case. Accordingly, we affirm the Department’s suspension of Martin’s personal driver’s license and disqualification of his CDL.

FACTS

¶2 In the early evening of September 27, 2009, Washington State Patrol Trooper Jeffrey Street arrested Martin for driving his personal vehicle while under the influence of alcohol (DUI). At the jail, Street read Martin the implied consent warnings from the “Implied Consent Warnings for Breath” form in the Washington State DUI arrest report packet. The implied consent warnings state:

Warning! You are under arrest for:
RCW 46.61.502 or RCW 46.61.504: Driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor and/or drugs.
Further, you are now being asked to submit to a test of your breath which consists of two separate samples of your breath, taken independently, to determine alcohol concentration.
[14]*141. You are now advised that you have the right to refuse this breath test; and that if you refuse:
(a) Your driver’s license, permit, or privilege to drive will be revoked or denied by the Department... for at least one year; and
(b) Your refusal to submit to this test may be used in a criminal trial.
2. You are further advised that if you submit to this breath test, and the test is administered, your driver’s license, permit, or privilege to drive will be suspended, revoked, or denied by the Department... for at least ninety days if you are:
(a) Age twenty-one or over and the test indicates the alcohol concentration of your breath is 0.08 or more, or you are in violation of RCW 46.61.502, driving under the influence, or RCW 46.61.504, physical control of a vehicle under the influence. . . .
3. If your driver’s license, permit, or privilege to drive is suspended, revoked, or denied, you may be eligible to immediately apply for an ignition interlock driver’s license.
4. You have the right to additional tests administered by any qualified person of your own choosing.

Clerk’s Papers (CP) at 42 (capitalization omitted). Although not read aloud to Martin, the form also contained the following warning regarding a commercial driver’s license:

For those not driving a commercial motor vehicle at the time of arrest: If your driver’s license is suspended or revoked, your commercial driver’s license, if any, will be disqualified.

CP at 42 (capitalization omitted).

¶3 Martin signed the form acknowledging that he had read the above statements or had had the above statement read to him. Martin did not express any confusion regard[15]*15ing the implied consent warnings, and he submitted to two breath tests that measured his blood alcohol level above the legal limit to drive.

¶4 The Department notified Martin that his personal driver’s license would be suspended for 90 days effective November 27, 2009, for “being in physical control or driving under the influence of alcohol or any drug (RCW 46.20-.3101).” CP at 89. The Department also notified him that his CDL would be disqualified for one year effective November 27, 2009. Martin requested an administrative hearing to contest the Department’s proposed suspension and disqualification.

¶5 The original hearing was scheduled for November 24, 2009, within 60 days of Martin’s arrest, but Martin’s counsel requested a continuance and waived the requirement that the hearing be set within 60 days. The hearing was continued to December 28; at Martin’s request, the hearing officer issued a subpoena for Street, the arresting officer, to appear by telephone at the hearing.

¶6 On December 28, 2009, the hearing officer convened the hearing as scheduled but Street failed to appear. Based on Street’s failure to appear, and citing Lytle v. Department of Licensing, 94 Wn. App. 357, 361-62, 971 P.2d 969 (1999), Martin moved to exclude the DUI arrest report from evidence and to dismiss the Department’s action against him. Initially, the hearing officer orally granted Martin’s motion to dismiss and cancelled the Department’s suspension order. But shortly thereafter on the same day, the hearing officer reconvened the hearing and ruled that her earlier dismissal was improper because Martin had a CDL and WAC 308.103.070(10) requires hearing officers to continue a hearing if a law enforcement officer who was subpoenaed as a witness fails to appear and the licensee holds a CDL. Over Martin’s objections, the hearing officer vacated her prior ruling, entered a continuance, and rescheduled the hearing for January 25, 2010.

[16]*16¶7 At the January 25 hearing, Street appeared and testified consistent with his arrest report, which the hearing officer admitted as evidence. Martin argued that due process required the hearing officer to dismiss the action on the initial hearing date in December because Street failed to appear.

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Cite This Page — Counsel Stack

Bluebook (online)
306 P.3d 969, 175 Wash. App. 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-department-of-licensing-washctapp-2013.