FILED FEBRUARY 14, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
RYAN CARMAN, ) ) No. 38598-1-III Respondent, ) ) v. ) ) WASHINGTON STATE DEPARTMENT ) UNPUBLISHED OPINION OF LICENSING, ) ) Petitioner. )
SIDDOWAY, C.J. — After Ryan Carman was arrested for driving under the
influence (DUI), was advised of his implied consent rights, and refused to submit
to evidentiary breath testing, the Department of Licensing (Department) revoked
his driver’s license in accordance with Washington’s “Implied Consent Statute,”
RCW 46.20.308. The Department’s hearing examiner sustained the suspension, and
Mr. Carman sought review in superior court. The superior court overturned the hearing
examiner’s decision.
The Department sought discretionary review in this court, which our
commissioner granted after concluding that the superior court appeared to have
“depart[ed] from the usual and accepted course of judicial review proceedings under
RCW 46.20.308(8).” Comm’r’s Ruling, Carman v. Dep’t of Licensing, No. 38598-1-III, No. 38598-1-III Carman v. Dep’t of Licensing
at 12 (Wash. Ct. App. Apr. 6, 2022) (on file with court). Because the superior court’s
reasons for reversing the hearing examiner amount to rejecting factual findings that are
supported by substantial evidence, we reverse the superior court’s order and direct that
the Department’s order be reinstated.
FACTS AND PROCEDURAL BACKGROUND
Shortly after midnight on March 19, 2021, Washington State Patrol Trooper C. J.
Cook was patrolling westbound on State Route (SR) 290 (Trent Avenue) when he
witnessed what turned out to be Ryan Carman’s vehicle make an improper left-hand turn
onto SR 290. Mr. Carman’s vehicle, which had been traveling southbound on Evergreen
Road, made its turn into the far-right lane traveling eastbound rather than the innermost
lane (the left eastbound lane).1 The trooper turned around and began following Mr.
Carman’s vehicle eastbound.
According to Trooper Cook, while following Mr. Carman, he observed two more
traffic infractions, both failures to make a proper turn signal: the first occurred as Mr.
Carman left SR 290 for the off-ramp for Sullivan Road, and the second occurred as he
was turning left from the off-ramp onto Sullivan Road.2 Once on Sullivan Road, Mr.
1 Under RCW 46.61.290(2), “[t]he driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of the vehicle.” 2 RCW 46.61.305(2) requires drivers to “signal [their] intention to turn or move right or left . . . continuously during not less than the last one hundred feet traveled by the vehicle before turning.”
2 No. 38598-1-III Carman v. Dep’t of Licensing
Carman properly signaled a lane change and a right-hand turn before Trooper Cook
activated his emergency lights. Mr. Carman signaled and pulled over to the right side of
the road, where Trooper Cook made the contact leading to Mr. Carman’s arrest and
driver’s license revocation.
At the administrative hearing on Mr. Carman’s challenge to the revocation, which
is before us for review, the hearing examiner made findings about the trooper’s contact
with, and reasons for, arresting Mr. Carman. They were based on the only evidence
offered at the hearing, which was the trooper’s report of investigation and dash camera
footage from the trooper’s patrol vehicle. Neither the trooper nor Mr. Carman testified.
The examiner found:
Upon contacting Mr. Carman, the trooper smelled an obvious odor of intoxicants coming from the vehicle. Mr. Carman had watery eyes. The trooper describes Mr. Carman’s voice as having a “heavy slur.” [The dash camera footage] corroborates this observation regarding Mr. Carman’s speech. Mr. Carman attempted to find the requested paperwork, and the trooper described Mr. Carman’s movements as slow and delayed. Mr. Carman admitted to having one beer earlier in the evening. Mr. Carman exited his vehicle without difficulty and walked normally to the front of the trooper’s patrol vehicle. When Mr. Carman stood outside of his vehicle, the trooper continued to smell the odor of intoxicants coming from his breath. Mr. Carman declined to take any voluntary field sobriety tests (FSTs). The trooper described Mr. Carman’s coordination as “poor” and his level of impairment as “obvious.”
Clerk’s Papers (CP) at 19-20 (record citations omitted).
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Trooper Cook advised Mr. Carman that he was placing him under arrest for DUI
and read him his Miranda3 rights. After Mr. Carman decided to leave his vehicle rather
than have it towed, and a passenger in Mr. Carman’s car was informed he would need to
arrange a different ride home, Trooper Cook drove Mr. Carman to the Spokane Valley
Police Department. The hearing examiner made the following unchallenged findings
about what transpired there:
Mr. Carman was informed of the implied consent rights and warnings (ICWs) after he had a chance to speak with an attorney. The trooper did not indicate that Mr. Carman asked any questions regarding the ICWs or expressed any confusion about the ICWs. The trooper asked Mr. Carman if he would submit to a breath test and Mr. Carman said no. The trooper considered this to be a refusal of the breath test and processed the result as such.
CP at 20 (record citation and subheading omitted). The trooper then obtained a search
warrant for a blood draw, the results of which were pending at the time of the hearing.
Within days, the Department notified Mr. Carman by letter that his license would
be revoked under the authority of RCW 46.20.3101. Mr. Carman filed a timely request
for an administrative hearing to contest the revocation.
Mr. Carman contended at the hearing that the dash camera video contradicted
Trooper Cook’s statements that Carman committed traffic infractions, making the traffic
stop unlawful. He contended that the video evidence also contradicted the trooper’s
statements about Mr. Carman’s comportment, and that it showed instead that he answered
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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questions appropriately, did not slur, and did not appear impaired. He argued there were
no reasonable grounds to suspect him of DUI, making the arrest unlawful.
The hearing examiner rejected both contentions. As for the traffic stop, the
hearing examiner entered the following conclusion:
Overall, the video evidence does not show all of the alleged driving of Mr. Carman. The undersigned does not see video evidence of Mr. Carman turning onto the state route or exiting the state route. Similarly, it is equally difficult to discern from the video whether Mr. Carman had his signal on when turning from the off ramp to Sullivan Road. The undersigned cannot discount the trooper’s narrative remarks in light of the incomplete evidence presented on the video. Ultimately, the trooper describes two instances where Mr. Carman did not signal appropriately. Both times implicate a violation of RCW 46.61.305 (detailing [when] signals are required). These infractions formed a basis to stop Mr. Carman. There was insufficient evidence to show that the trooper’s observations were reasonable [sic].[4] The trooper lawfully contacted Mr. Carman.
CP at 20 (emphasis added).
As for the arrest, the hearing examiner concluded:
A person’s successful performance on one or more field sobriety tests does not vitiate the existence of probable cause for DUI based upon other observations and facts. In the present case, the trooper smelled an obvious odor of intoxicants coming from Mr. Carman. This observation continued when Mr. Carman was outside of the vehicle. Visually, Mr. Carman had watery eyes and his coordination was poor. The video evidence supports that Mr. Carman had an undeniable slur to his speech. Mr. Carman admitted to consuming one beer earlier in the evening. Mr. Carman declined to perform the FSTs. The video supports that Mr. Carman exited his vehicle
4 Mr. Carman reasonably concedes that the hearing examiner intended in the penultimate statement to say there was insufficient evidence to show that the trooper’s observations were “unreasonable.”
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without difficulty and walked without difficulty. However, this positive observation does not overcome the other observations made by the trooper that suggested Mr. Carman was impaired. Just as positive performance on some FSTs does not alone negate probable cause, some positive observations such as walking without difficulty do not negate all other facts known to the trooper including the obvious odor of intoxicants coming from one’s breath and slurred speech. At the time of arrest, there were reasonable grounds to believe Ryan Carman was driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or was in violation of RCW 46.61.503.
CP at 21 (citation omitted).
Mr. Carman sought judicial review in superior court. He argued that rather than
conclude that traffic infractions had been committed that did not appear in the dash
camera video, the hearing examiner should have found that the video proved that Mr.
Carman committed no infractions. He also argued that the hearing examiner did not
perceive Mr. Carman as appearing uneasy on his feet, as Trooper Cook had, and she
should have concluded from what Mr. Carman labeled the trooper’s “lie[ ]” and
“fabricated evidence” that none of the trooper’s other reported observations were worthy
of belief. CP at 5-6. Mr. Carman argued that the hearing examiner gave too much
weight to the trooper’s statements and too little weight to other evidence that might be
viewed as exculpatory.
The trial court reversed the hearing examiner’s order and signed an order
presented by Mr. Carman that provided the following reason for reversal:
Even after accepting those factual determinations supported by substantial evidence in the record that were either expressly made or reasonably
6 No. 38598-1-III Carman v. Dep’t of Licensing
inferred, the Department’s final ruling outlined in the Findings of Fact [and] Conclusions of Law which suspended [Mr. Carman]’s privilege to drive was an error of law.
CP at 62.
The Department sought discretionary review by this court. Our commissioner
initially requested that the superior court “provide its reasons for its conclusion that the
Department’s final ruling was an ‘error of law.’” Comm’r’s Ruling, No. 38598-1-III,
at 2 (Wash. Ct. App. Jan. 27, 2022). The superior court entered a clarification order
presented by Mr. Carman. In addition to repeating the bare conclusion that sustaining the
suspension was an error of law, the superior court found and concluded that (1) the
hearing examiner unreasonably concluded that the video evidence was incomplete and
failed to show all of Mr. Carman’s driving relied on by Trooper Cook, and (2) the
examiner’s conclusion that Mr. Carman’s arrest was lawful was not supported by
substantial evidence.
Our commissioner granted discretionary review under RAP 2.3(d)(4), it appearing
that the superior court departed from its narrow appellate role under RCW 46.20.308(8).
ANALYSIS
Under Washington’s Implied Consent Statute, Washington drivers “‘are presumed
to have consented to a breath or blood test to determine alcohol concentration if arrested
for DUI, but drivers may refuse the test.’” Lynch v. Dep’t of Licensing, 163 Wn. App.
697, 705-06, 262 P.3d 65 (2011) (quoting State v. Elkins, 152 Wn. App. 871, 876, 220
7 No. 38598-1-III Carman v. Dep’t of Licensing
P.3d 211 (2009)). The Department must revoke a driver’s license when it receives a
sworn police report establishing that (1) the driver was lawfully stopped and arrested,
(2) at the time of the arrest, there were reasonable grounds to believe the driver drove
while under the influence of alcohol, and (3) after receiving implied consent warnings,
the driver refused to provide a breath sample. RCW 46.20.308(5)-(7). Before the
revocation takes effect, the driver is entitled to an administrative hearing to contest the
required elements. RCW 46.20.308(7). The police report is prima facie evidence of the
elements at the administrative hearing, with the burden on the driver to refute it. Id. The
hearing is civil in nature and the Department’s burden is to establish the elements by a
preponderance of the evidence. Bell v. Dep’t of Motor Vehicles, 6 Wn. App. 736, 739,
496 P.2d 545 (1972); O’Neill v. Dep’t of Licensing, 62 Wn. App. 112, 116, 813 P.2d 166
(1991). If the revocation is sustained, the driver can seek judicial review in superior
court. RCW 46.20.308(8).
Critical to our commissioner’s grant of discretionary review in this case are the
requirements of RCW 46.20.308(8) that the superior court’s review “must be limited to a
determination of whether the department has committed any errors of law,” and that the
superior court “shall accept those factual determinations supported by substantial
evidence in the record: (a) That were expressly made by the department; or (b) that may
reasonably be inferred from the final order of the department.”
8 No. 38598-1-III Carman v. Dep’t of Licensing
“Substantial evidence is evidence in sufficient quantum to persuade a fair-minded
person of the truth of the declared premise.” Dep’t of Licensing v. Sheeks, 47 Wn. App.
65, 69, 734 P.2d 24 (1987). In conducting appellate review, the superior court and this
court must be careful to do no more than search for the presence of evidence, and not to
weigh it or evaluate credibility, since determinations of weight and credibility are within
the province of the hearing examiner in these proceedings, not the courts. Id. A
reviewing court “will not ‘disturb findings of fact supported by substantial evidence even
if there is conflicting evidence.’” Cummings v. Dep’t of Licensing, 189 Wn. App. 1, 11,
355 P.3d 1155 (2015) (quoting McCleary v. State, 173 Wn.2d 477, 514, 269 P.3d 227
(2012).
The superior court may reverse, affirm, or modify the decision of the Department,
or remand the case to the Department for further proceedings. RCW 46.20.308(8). We
review the Department’s administrative decision just as the superior court did. In re
Richie, 127 Wn. App. 935, 939, 113 P.3d 1045 (2005).
We first address the superior court’s explanation that it reversed the hearing
examiner because she unreasonably concluded that the video evidence was incomplete.
We then turn to the superior court’s explanation that the examiner’s conclusion that Mr.
Carman’s arrest was lawful was not supported by substantial evidence.
9 No. 38598-1-III Carman v. Dep’t of Licensing
I. THE HEARING EXAMINER’S DETERMINATION THAT THE VIDEO EVIDENCE FAILED TO SHOW ALL OF MR. CARMAN’S DRIVING OBSERVED BY TROOPER COOK IS A FINDING OF FACT SUPPORTED BY SUBSTANTIAL EVIDENCE
Mr. Carman argued to the hearing examiner that because Trooper Cook’s report
stated it was “at approximately 0013 hours” (12:13 a.m.), that Mr. Carman’s vehicle
caught his attention (CP at 41), and the trooper recorded the time of arrest as 0021 hours
(12:21 a.m.), then the 7 minute, 58 second portion of the dash camera video that he
offered in evidence must have recorded the infractions reported by Trooper Cook if they
actually occurred.5 Because none of the three infractions can be seen in the video, Mr.
Carman argues that the hearing examiner could not reasonably find that they did occur.
Mr. Carman submits that the trooper must have been relying on Mr. Carman’s driving
5 The Department argues as a threshold matter that the hearing examiner’s findings of fact are verities on appeal because Mr. Carman failed to explicitly assign error to any of them in petitioning the superior court for review, citing Department of Licensing v. Lax, 125 Wn.2d 818, 822, 888 P.2d 1190 (1995). At the time Lax was being reviewed, however, former RCW 46.20.334 (1972) unqualifiedly provided that a driver whose license was revoked had a right to a hearing de novo in superior court. LAWS OF 1972, ch. 29, § 4. Lax was the appellant, and the finding of fact at issue was a superior court finding; it was in that context that this court treated the unchallenged finding as a verity on appeal. 125 Wn.2d at 822 (citing Metro. Park Dist. v. Griffith, 106 Wn.2d 425, 433, 723 P.2d 1093 (1986)). Under current law, the superior court’s review is no longer de novo. See RCW 46.20.308(8) and .334. RCW 46.20.308(8) provides only that a petition to the superior court “filed under this subsection must include the petitioner’s grounds for requesting review.” The Department, not Mr. Carman, is the appellant in this case, so RAP 10.3(g) does not apply. Where Lax is cited as the Department’s only authority, we are unprepared to agree that the hearing examiner’s findings are verities unless explicitly assigned error in the petition for superior court review.
10 No. 38598-1-III Carman v. Dep’t of Licensing
after turning onto Sullivan Road for the alleged infractions, and the video reveals that Mr.
Carman properly signaled his lane change and right turn on Sullivan Road.
The Department’s response is that the video did not record the first infraction
Trooper Cook observed (the improper turn onto SR 290 from Evergreen Road) because
the recording does not begin until after the trooper had already turned around from his
westbound travel and had begun to follow Mr. Carman eastbound. Even after the
recording starts, Mr. Carman’s vehicle cannot be clearly seen for as much as 24 seconds,
since Mr. Carman was well ahead of the trooper, who was in the process of catching up.
Although the left turn onto Sullivan Road that Trooper Cook recorded as the third
infraction can be seen on the video, the lighting makes it impossible to tell whether the
vehicle properly signaled or not.
The hearing examiner’s statement that “the video evidence does not show all of
the alleged driving of Mr. Carman” is included in the section of the order headed
“Conclusions of Law,” but in substance it is a finding of fact. CP at 20 (boldface and
some capitalization omitted). A finding of fact is an assertion that evidence shows
something occurred or exists, independent of an assertion of its legal effect. Lanzce G.
Douglass, Inc. v. City of Spokane Valley, 154 Wn. App. 408, 417-18, 225 P.3d 448
(2010) (citing State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981); State v.
Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986)). Conclusions of law are
determinations made by a process of legal reasoning from the facts. Id. (citing
11 No. 38598-1-III Carman v. Dep’t of Licensing
Niedergang, 43 Wn. App. at 658-59). We review mislabeled findings of fact for what
they actually are. Id.
Substantial evidence supports the finding. The dash camera video records a series
of events that correlate with Trooper Cook’s report of events occurring after he turned
and started following Mr. Carman eastbound. It is a reasonable inference (one might
even say it is an unescapable inference) that the recording does not begin until after the
first infraction was seen, causing the trooper to change direction. For the first 20 seconds
of the recording, the trooper is gradually gaining on traffic ahead of him. Because of
distance, lighting and the shortcomings of dash camera video, the hearing examiner could
and did find that Trooper Cook could have seen signal infractions that cannot be
discerned on the video. Notably, the video does not show that Mr. Carman did properly
signal when exiting SR 290 and turning left onto Sullivan Road.
Mr. Carman argues that the hearing examiner’s finding that the video did not
capture the initial infraction creates a “contradiction,” because of the 7 minute, 58 second
video and what Mr. Carman characterizes as the trooper’s 8-minute timeline between the
first infraction and the arrest. Resp. to Dep’t’s Opening Br. at 16-17. We disagree.
SR 290 is not a divided highway in the area,6 and having decided to follow Mr. Carman,
6 This can be seen on the video and is also a proper matter for judicial notice. Cf. Derheim v. N. Fiorito Co., 80 Wn.2d 161, 165, 492 P.2d 1030 (1972) (judicial notice taken of “No U-Turn” signs posted along portions of Interstate Highway 5); State v. Thompson, 57 Wn. App. 688, 694 n.7, 790 P.2d 180 (1990) (judicial notice taken that
12 No. 38598-1-III Carman v. Dep’t of Licensing
it is reasonable to assume that Trooper Cook quickly turned and changed direction. In
preparing his report, he might reasonably have relied on the time he activated the dash
camera for what he recorded as the “approximate[ ]” time when Mr. Carman’s vehicle
caught his attention. CP at 41. There is no contradiction between what the trooper
characterized as an “approximate” 8-minute timeline and a series of events that might
have taken 15 or 20 seconds more than 8 minutes.
This court has repeatedly observed that “[a] reviewing court must be ‘careful to do
no more than search for the presence of evidence and not to weigh it or evaluate
credibility.’” Singh v. Dep’t of Licensing, 5 Wn. App. 2d 1, 9, 421 P.3d 504 (2018)
(quoting Sheeks, 47 Wn. App. at 69). In ruling that the hearing examiner unreasonably
found that the video was incomplete, the superior court improperly reweighed the
evidence.
II. SUBSTANTIAL EVIDENCE SUPPORTS THE HEARING EXAMINER’S FINDINGS IN SUPPORT OF HER CONCLUSION THAT MR. CARMAN’S ARREST WAS LAWFUL
The hearing examiner entertained Mr. Carman’s challenge to whether reasonable
grounds existed for suspecting him of DUI. Having heard his evidence and argument,
she accepted Trooper Cook’s observations regarding Mr. Carman’s watery eyes and
alcoholic odor. She also found that the video supported the statement that Mr. Carman
was slurring his words. While she found that Mr. Carman walked without difficulty to
about 56 miles of the distance between Wenatchee and Goldendale is via a four-lane interstate highway), aff’d, State v. Greenwood, 120 Wn.2d 585, 845 P.2d 971 (1993).
13 No. 38598-1-III Carman v. Dep’t of Licensing
the patrol car, contrary to the trooper’s characterization that he was uneasy on his feet,
she concluded that “this positive observation . . . d[id] not overcome . . . other
observations . . . that suggested Mr. Carman was impaired.” CP at 21.
Mr. Carman asked the superior court to disregard the credibility determinations
and weight that the hearing examiner accorded the evidence. He protests that this is not
what he was doing; he argues he was merely asking the superior court to recognize that
the evidence relied on by the hearing examiner “was not substantial . . . considering the
entire record.” Resp. to Dep’t’s Opening Br. at 20. But this is asking the superior court
to weigh the evidence as Mr. Carman contends it should be weighed, contrary to the
narrow review authorized by RCW 46.20.308(8).
Mr. Carman complains that the hearing examiner failed to give proper weight to
what he contends was the ease and cogency with which he answered Trooper Cook’s
questions. There was conflicting evidence of Mr. Carman’s cogency, however,7 and it
was the hearing examiner’s role, not the superior court’s, to decide whether his response
to questioning was a sign of sobriety that outweighed signs of inebriation. Mr. Carman
was asking the superior court to reweigh evidence.
7 Mr. Carman did not always appear to be thinking and communicating clearly. E.g., Ex. B. at 8 min., 11 sec. through 8 min., 15 sec. (saying loudly, “I plead the Fifth,” in response to the trooper’s question); see also, e.g., 10 min., 17 sec. through 10 min., 20 sec. (“I want all my shit.”). At other times, he seemed confused and repeated himself. See, e.g., 9 min., 49 sec. through 9 min., 52 sec.; see also 10 min., 42 sec. through 10 min., 45 sec. (expressing confusion about whether he was being detained or arrested despite Trooper Cook answering the affirmative that he was under arrest).
14 No. 38598-1-III Carman v. Dep’t of Licensing
Mr. Carman complains that the hearing examiner failed to consider that his
passenger accounted for the smell of intoxicants, and that Trooper Cook’s failure to
mention the passenger in his report detracts from its credibility. But the dash camera
video revealed that the trooper had extended dealings with Mr. Carman after he stepped
out of his vehicle, and its door was closed. The hearing examiner was not oblivious to
Mr. Carman’s argument. But she found that not only had the trooper detected an obvious
odor of intoxicants from the vehicle on first contact, but that “[w]hen Mr. Carman stood
outside of his vehicle, the trooper continued to smell the odor of intoxicants coming from
his breath.” CP at 20. In short, she rejected Mr. Carman’s argument that the odor of
intoxicants did not inculpate him personally. Mr. Carman was asking the superior court
to reweigh evidence.
The hearing examiner credited the trooper’s statement in his report that Mr.
Carman’s coordination was poor when he was asked for his information. Compare CP at
42 (“I observed his movements were slow, delayed and uneasy.”) and CP at 21 (hearing
examiner’s finding that Mr. Carman’s “coordination was poor”). Elsewhere, Trooper
Cook observed that after Mr. Carman was outside his car and standing in front of him,
“the defendant appeared uneasy on his feet,” yet the hearing examiner described Mr.
Carman as “exit[ing] his vehicle without difficulty and walk[ing] normally to the front of
the trooper’s patrol vehicle.” CP at 42, 20. Mr. Carman argued to the superior court that
because the hearing examiner’s finding on the latter point differed from the trooper’s, she
15 No. 38598-1-III Carman v. Dep’t of Licensing
should have disbelieved the trooper’s report that Mr. Carman was slow, delayed and
uneasy in producing his paperwork. Here again, Mr. Carman was asking the superior
court to reweigh evidence.
In all, the video and Trooper Cook’s report provided substantial evidence
supporting the hearing examiner’s findings that Mr. Carman’s eyes appeared watery, his
speech was slurred, his coordination was poor, and an obvious odor of intoxicants came
from his breath. These, in turn, supported her conclusion that Trooper Cook had
reasonable grounds for believing Mr. Carman was under the influence of intoxicating
liquor and placing him under arrest.
The Department met its burden of demonstrating grounds to revoke Mr. Carman’s
driver’s license. We reverse the superior court’s order and direct that the Department’s
order revoking the license be reinstated.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Siddoway, C.J.
WE CONCUR:
Fearing, J. Pennell, J.