Weekly v. Department of Licensing

27 P.3d 1272, 108 Wash. App. 218
CourtCourt of Appeals of Washington
DecidedAugust 7, 2001
DocketNo. 19004-8-III
StatusPublished
Cited by3 cases

This text of 27 P.3d 1272 (Weekly 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
Weekly v. Department of Licensing, 27 P.3d 1272, 108 Wash. App. 218 (Wash. Ct. App. 2001).

Opinion

Kurtz, C.J.

The Department of Licensing revoked Aaron Scott Weekly’s driver’s license after he was arrested for driving under the influence. At the license revocation hearing, a witness Mr. Weekly subpoenaed was allowed to testify over the phone, instead of in person. Mr. Weekly appealed the hearing examiner’s decision to the superior court, contending that the hearing violated his due process rights because he was unable to confront the witness who testified over the phone. The superior court agreed and reversed. We granted discretionary review. On appeal, the Department of Licensing contends Mr. Weekly had no right to confront the witness in person, and the witness’s appearance by phone did not violate due process. We agree and reverse.

[220]*220FACTS

At approximately 9:20 p.m., Officer James Wallingford of the Cheney Police Department heard a car horn honking outside of the police station. He went outside and found a man standing beside a Saturn automobile. A woman and a small boy were inside the Saturn. The woman, Sandra Haase, was honking the horn and waving her arms frantically at the officer. A BMW was parked behind the Saturn.

Officer Wallingford contacted the woman, and she informed him that the man had been following her. She said his car bumped hers as she stopped in front of the police station. The officer checked the bumper of the car and observed a scratch. The woman told the officer that she did not know the man who had been following her.

When Officer Wallingford contacted the man, he asked him whether there was a problem. The man, later identified as Aaron Scott Weekly, responded that he had had too much to drink. Officer Wallingford noticed that Mr. Weekly smelled of alcohol, his speech was slurred, his eyes were bloodshot and his face was flushed. Officer Wallingford handcuffed Mr. Weekly and escorted him into the police station.

Inside the police station, Mr. Weekly was identified through several credit cards contained in his wallet. Mr. Weekly failed all of the field sobriety tests he was given. Officer Wallingford arrested Mr. Weekly for driving under the influence.

Subsequently, Mr. Weekly’s license was located in the BMW. Officer Wallingford told Mr. Weekly that he could not close a window on the car. Mr. Weekly explained that he was a private auto dealer and he had just purchased the car.

Officer Wallingford read Mr. Weekly his rights, and, on the advice of counsel, Mr. Weekly submitted to a breath test. He was tested twice and he registered .194 on the first test and .198 on the second test. Officer Wallingford cited [221]*221Mr. Weekly for driving under the influence, and for driving with a suspended license in the second degree.

After Officer Wallingford escorted Mr. Weekly into the station, he again contacted Ms. Haase. Ms. Haase said that she did not want the man who followed her to know her name because she feared he was mentally unstable. She reluctantly identified herself, and asked that her name not be disclosed. She said she did not want to be called into court to testify.

However, eventually Mr. Weekly’s attorney subpoenaed Ms. Haase to appear at the implied consent hearing. The subpoena was served on Ms. Haase’s husband two days before the hearing date. She did not appear. She later testified that she was out of state on the hearing date. Subsequently, she requested permission to appear at the next hearing by telephone.

At the telephonic hearing, Mr. Weekly’s attorney argued that the witness, who claimed to be Ms. Haase on the phone, might not truly be Ms. Haase. Counsel asked Ms. Haase several identifying questions about her height, weight, marital status, and the location of her job, purportedly to confirm her identity. She was reluctant to give some information to Mr. Weekly because she was fearful of retribution.

Mr. Weekly did not testify at the hearing. He did not subpoena Officer Wallingford to testify. He moved to dismiss on the basis that Ms. Haase did not appear in person at his attorney’s office.

The hearing officer ruled that Ms. Haase did not need to identify Mr. Weekly a second time, and Mr. Weekly did not present any evidence of mistaken identity. The officer affirmed the Department’s revocation of Mr. Weekly’s driver’s license for two years.

Mr. Weekly appealed the revocation to superior court. The superior court reversed the revocation, finding that the implied consent hearing violated due process because Ms. Haase was allowed to appear by telephone. The Depart[222]*222ment filed a motion for discretionary review, which was granted.

ANALYSIS

The Department of Licensing contends that the superior court erred by finding the Department’s failure to compel Ms. Haase’s attendance in person violated Mr. Weekly’s due process rights. The Department further contends that Mr. Weekly had no right to confront Ms. Haase, a citizen informant, at a civil administrative hearing.

The implied consent law provides that a person who drives in this state is deemed to have consented to a test to determine the alcohol content of his or her blood or breath if arrested for suspicion of driving under the influence. RCW 46.20.308(1). If the test results indicate that the driver’s alcohol concentration is 0.08 or more, the officer is directed to serve notice to the driver of the Department of Licensing’s intent to suspend, revoke or deny the person’s license as required by the statute. RCW 46.20.308(6)(a). Also, the officer is required to inform the driver of his or her right to a hearing. RCW 46.20.308(6)(b).

If a hearing is requested, the proceeding is governed by RCW 46.20.308(8). The scope of the hearing covers, among other issues, whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within Washington while under the influence of intoxicating liquor. RCW 46.20.308(8). The officer’s sworn report is prima facie evidence that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence. Id. A hearing officer conducts the hearing, and may issue subpoenas for the attendance of witnesses. Id.

“Revocation of a driver’s license for a statutorily defined cause implicates a protectable property interest that must comply with due process.” Lytle v. Dep’t of Licensing, 94 Wn. App. 357, 361, 971 P.2d 969 (1999) (citing [223]*223Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)). The State has the burden to prove the license revocation complied with due process. Lytle, 94 Wn. App. at 361. In Lytle, this court relied upon Flory v.

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Bluebook (online)
27 P.3d 1272, 108 Wash. App. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weekly-v-department-of-licensing-washctapp-2001.