Yuri Prostov, App. v. Wa State Department Of Licensing, Res.

• Court: Court of Appeals of Washington
• Decided: April 6, 2015
• Docket: 71219-5
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

YURI PROSTOV, NO. 71219-5-1

Appellant, DIVISION ONE 3»° P~ _ —O O ": *i 50 v. cn i'";,V- STATE OF WASHINGTON, PUBLISHED OPINION DEPARTMENT OF LICENSING, -'-•'. o FILED: April 6, 2015 CO

Respondent. O"

Lau, J. —The Washington Department of Licensing suspended Yuri Prostov's

driver's license for using his twin brother's name in a license application. He contends the importance of a licensee's private interest requires proof by evidence beyond a reasonable doubt or clear, cogent, and convincing evidence as a matter of due process.

The department's burden of proof in an administrative license proceeding under RCW 46.20.291(7) and RCW 46.20.0921 (1)(e) to suspend or revoke a license is the preponderance of the evidence standard. This standard of proof strikes a fair balance between the rights of a licensee and the state's legitimate interest in regulating vehicle drivers. We conclude that such a standard adequately conveys to the fact finder the 71219-5-1/2

level of subjective certainty about the factual conclusion necessary to satisfy due

process. We affirm the suspension of Yuri Prostov's driver's license under RCW

46.20.291(7) and RCW 45.20.0921 (1)(e). We also affirm the trial court's denial of Yuri's

attorney fees request.

FACTS AND PROCEDURAL HISTORY

Yuri Prostov and Geirman Prostov are identical twin brothers.12 The Washington

Department of Licensing issued driver's licenses to each of them.

In 2010, the department performed a routine "scrub" of its files using facial

recognition software designed to identify fraud.3 RP 18-19.4 The software compares

individual driver photos to other photos contained in the department's database. This

software identified photos of Yuri and Geirman for further review.

The department assigned Jessica Bullock from the department's Licensing

Integrity Unit to investigate. Bullock compared the department's photos of Yuri and

Geirman to determine possible matches. Bullock focused on durable characteristics

that are less likely to change over time, such as scars, birthmarks, ears, nose, eye

shape, and lips. She noted several differences in the photos of the brothers, including a

scar on the right side of Yuri's upper lip.

1We refer to each brother by his first name for clarity.

2 The Report of Proceedings misspells Geirman's name as "Jermaine."

3 The legislature authorized the department to implement and use a facial recognition matching system. RCW 46.20.037.

4 The Report of Proceedings appears in two volumes dated October 14, 2013, and October 15, 2013. Because the pages are numbered sequentially, 1-176, no dates are used in the citations to the record. 71219-5-1/3

Bullock concluded that Yuri obtained a driver's license at the Kirkland Licensing

Center using Geirman's name on June 25, 2001 and on January 28, 2009. The

department issued an order suspending Yuri's license for 364 days for using a false

name in a driver's license application, contrary to RCW 46.20.0921 (1)(e). Yuri

appealed and the hearing examiner affirmed the department's decision after an

administrative hearing.

In Washington, drivers facing license suspension under RCW 46.20.291 are

entitled to several procedural protections. First, the driver must receive notice and an

opportunity for a driver improvement interview. RCW 46.20.322. A driver may file a

written statement, present evidence, and present argument before an analyst sitting as

a "referee." RCW 46.20.327. Following an adverse finding, the driver may request a

formal hearing to contest the department's decision. RCW 46.20.328. At the hearing,

the driver may introduce evidence, subpoena witnesses, and present argument on the

record. RCW 46.20.332. Following a determination at the hearing, the driver may

appeal to the superior court for a de novo hearing. RCW 46.20.334. A license

suspension is stayed pending the outcome of the formal hearing and an appeal to

superior court. RCW 46.20.329. Yuri requested a de novo hearing in superior court

under RCW 46.20.334.5

5 Because the trial court conducted a de novo hearing, the administrative record is not before this court. The de novo proceeding in the superior court is a "full and independent judicial, evidentiary, and factual review . . . ." Dep't of Motor Vehicles v. Andersen, 84 Wn.2d 334, 340, 525 P.2d 739 (1974). 71219-5-1/4

The trial court admitted the department's photos of Yuri and Geirman.6 Bullock

testified for the department about her investigation. The trial court compared the photos

of Yuri and Geirman rather than permitting Bullock to testify about her comparison of the photos.

Department of Licensing hearings examiner manager Laurie Provoe worked for

the department for almost 35 years. She generally testified about the license

application procedures.

Yuri also testified and confirmed that his facial scar extended from the right side

of his upper lip to the right side of his nose since at least 2001. He also confirmed that

Geirman had no facial scar.

The court observed Yuri's facial scar in court and noted that Geirman's photos

showed no facial scar. The court also noticed that unlike Yuri's straight nose,

Geirman's nose bends slightly to the left. The court concluded that the photo in Yuri's

license issued under Geirman's name7 is significantly different from the photo of

Geirman in the known picture of Geirman.8 It found that the photos in the 2009 license

contained the same facial scar and nose structure as the photos of Yuri in exhibits 1R

and 1S.

6The photos of Yuri were admitted as exhibits K, R, and S. Geirman's photos were admitted as exhibits L and V.

7 These were shown in exhibits 1T and 1U. Exhibit 1T is an enlarged color image of a 2009 Washington driver's license bearing Yuri's photo and Geirman's name. Exhibit 1U depicts the same photo as 1T, but is enlarged further. Exhibit 1U also bears Geirman's name and indicates an issue date of January 28, 2009.

8 The department submitted this photo as exhibit 1V. It shows an enlarged photo of Geirman taken from the department's records. The exhibit shows an issue date of January 21, 2010. 71219-5-1/5

The court concluded that the department proved by a preponderance of the

evidence that Yuri used a false or fictitious name to obtain the January 28, 2009 driver's

license. The court also concluded that the department failed to prove by a

preponderance that Yuri used his brother's name in a 2001 application. Based on its

finding as to the 2009 license, the court upheld the department's 364-day suspension of

Yuri's driver's license. The court also denied Yuri's request for attorney fees under the

Equal Access to Justice Act, RCW 4.84.340 (EAJA).

Yuri appeals. ANALYSIS

Burden of Proof

Yuri mainly challenges the trial court's conclusion that the preponderance of

evidence standard applies to a license suspension proceeding under RCW 46.20.291 (7)

(prohibited practices statute). He argues that the text of the statute and principles of

due process require proof beyond a reasonable doubt. In the alternative, he contends

due process requires clear, cogent, and convincing evidence.

RCW 46.20.291 states in part:

The department is authorized to suspend the license of a driver upon a showing by its records or other sufficient evidence that the licensee:

(7) Has committed one of the prohibited practices relating to drivers' licenses defined in RCW 46.20.0921.

RCW 46.20.0921 (misdemeanor penalty statute) lists eight license-related

practices that constitute a misdemeanor if violated. Relevant to this case, subsection

.0921 (1)(e) states:

(1) It is a misdemeanor for any person:

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(e) To use a false or fictitious name in any application for a driver's license or identicard or to knowingly make a false statement or to knowingly conceal a material fact or otherwise commit a fraud in any such application.

RCW 46.20.0921 (1)(e).

Beyond a Reasonable Doubt Standard

Yuri contends, "The plain and unambiguous language of the statute requires the

DOL [Department of Licensing] to prove that the licensee 'has committed' criminal

statutory fraud, which can only be established using the beyond a reasonable doubt

standard of review." Br. of Appellant at 10. We disagree.

The first rule of statutory construction is to give effect to the legislature's intent,

which is primarily derived from the plain meaning of the statute. Lake v. Woodcreek

Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). Absent a specialized

statutory definition, courts give a term its plain and ordinary meaning. Plain meaning

should be discerned from the ordinary meaning of the language at issue, the context of

the statute in which that provision is found, related provisions, and the statutory scheme

as a whole. Lake, 169 Wn.2d at 526.

No relevant statute defines the term "commit." Yuri cites to a dictionary defining

"commit" as "to carry into action deliberately: PERPETUATE ." Br. of

Appellant at 12. He also cites to a law dictionary that defines "commit" as "[t]o

perpetuate191 (a crime). Black's Law Dictionary 266 (7th ed. 1999)." (First alteration in

original.)

Relying on these definitions, Yuri argues, "[UJnder its [commit] plain meaning,

RCW 46.20.291(7) requires the [department] to prove that the licensee perpetuated a

9 We note Black's Law Dictionary defines "commit" as to perpetrate not "perpetuate" a crime. -6- 71219-5-1/7

criminal fraud under RCW 46.20.0921 (1)(e)." Br. of Appellant at 12. He also argues

that because the department "alleged" that he "'committed' criminal statutory fraud," it

must prove this misdemeanor allegation based on the beyond a reasonable doubt

standard applicable in a criminal case. Br. of Appellant at 10; see RCW 9A.20.010

(classification of crimes).

Yuri's dictionary definition reasoning is not persuasive. It is well settled that "[w]e

may discern the plain meaning of nontechnical statutory terms from their dictionary

definitions." State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). In the present

case, Webster's Third International Dictionary provides numerous definitions for the

term "commit," including to obligate or bind to take some course of action. Further, we

decline to rely on a law dictionary's definition of "commit" to ascertain its ordinary

meaning. "When a technical term is used in its technical field, the term should be given

its technical meaning by using a 'technical rather than a general purpose dictionary' to

resolve the term's definition." Tinqev v. Haisch, 159 Wn.2d 652, 658, 152 P.3d 1020

(2007) (quoting City of Spokane ex rel. Wastewater Mgmt. Dep't v. Dep't of Revenue,

145 Wn.2d 445, 454, 38 P.3d 1010 (2002)). There is no indication that the legislature

intended to use the legal definition of the term "commit." Reliance on a legal dictionary

definition is thus improper.

Yuri also reads the term in isolation without regard to context. "All words must be

read in the context of the statute in which they appear, not in isolation or subject to all

possible meanings found in a dictionary." State v. Lilvblad, 163 Wn.2d 1, 9, 177 P.3d

686 (2008). The department is authorized to suspend a license based on "its records"

or "sufficient evidence" whenever a licensee "commits" a "prohibited practice" that is 71219-5-1/8

defined in the misdemeanor penalty statute. RCW 46.20.291; RCW 46.20.0921. Read

together, nothing in these two statutes indicates the legislature intended for the

department to prove beyond a reasonable doubt "criminal fraud" in order to suspend a

license.

First, a single word in a statute should not be read in isolation. Rather, the meaning of a word may be indicated or controlled by reference to associated words. In applying this principle to determine the meaning of a word in a series, a court should "take into consideration the meaning naturally attaching to them from the context, and . . . adopt the sense of the words which best harmonizes with the context."

State v. Gonzales Flores. 164 Wn.2d 1, 12, 186 P.3d 1038 (2008) (citations and internal

quotation marks omitted) (quoting State v. Roqqenkamp, 153 Wn.2d 614, 623, 106 P.3d

196(2005)).

Further, the related regulations undermine Yuri's claim that the department must

prove "criminal fraud" beyond a reasonable doubt in this administrative license

suspension proceeding. Under WAC 308-104-075, "[t]he department shall suspend . ..

a person who has been convicted of or determined by the department to have

committed one of the prohibited practices . . . listed in RCW 46.20.0921

(Emphasis added.) This regulation is clear that the department must suspend a license

if a person is either convicted of one of the prohibited practices listed in the

misdemeanor penalty statute or the department determines a person committed one of

the prohibited practices listed in the misdemeanor penalty statute. A "conviction" may

be established for purposes of the abstract of conviction by "the payment of a fine,"

"unvacated forfeiture of bail or collateral deposited," "plea of guilty by the defendant" or

"[a] finding of guilt." WAC 308-104-130. Thus, this regulation is clear that a driver's

license may be suspended based on either a criminal conviction related to one of the

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listed prohibited practices or an administrative determination that a driver violated one of

the listed prohibited practices.

Yuri's reading of the two statutes is illogical. Read together and in context, the

plain text of the prohibited practices statute, the misdemeanor penalty statute and the

related regulations do not require the department to prove "criminal fraud" in an

administrative license suspension proceeding before it is authorized to suspend a

license under RCW 46.20.0921 (1)(e).

Further,

it has been almost universally held that the suspension or revocation of a driver's license is not penal in nature and is not intended as punishment, but is designed solely for the protection of the public in the use of the highways. It is also well established that a proceeding to revoke a driver's license is a civil not a criminal action.

State v. Scheffel. 82 Wn.2d 872, 879, 514 P.2d 1052 (1973) (citations omitted).

In addition, the "beyond a reasonable doubt" standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the ".. . criminal law," and we should hesitate to apply it too broadly or casually in noncriminal cases.

Addinqton v. Texas, 441 U.S. 418, 428, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)

(quoting InreWinship, 397 U.S. 358, 364, 90 S. Ct. 1068 (1970)).10

The legislature may provide for both civil and criminal penalties in the same act

without converting the civil penalty scheme into a criminal or penal proceeding. State v.

Von Thiele, 47 Wn. App. 558, 561, 736 P.2d 297 (1987).

10 Yuri relies on Winship to argue that the "beyond a reasonable doubt" standard applies here. That case arose from a juvenile delinquency proceeding involving a 12- year-old child accused of stealing, which subjects him to confinement for up to six years, thus implicating a liberty interest. Here, a licensee's interest in a driver's license is a property interest subject to reasonable government regulation. Winship is not controlling. 71219-5-1/10

In Ingram v. Department of Licensing. 162 Wn.2d 514, 173 P.3d 259 (2007), two

men challenged the suspension of their driver's licenses under the implied consent law,

RCW 46.20.308. That statute, like the statute here, confers on the licensee the right to

challenge the suspension by requesting a DOL formal hearing and a subsequent right to

appeal the final suspension order to superior court. After discussing the evolution of the

legislature's efforts to eliminate intoxicated drivers on the highways, the Supreme Court

made a point of clarifying the dual-track statutory scheme of the license suspension

proceeding and the criminal prosecution proceeding.

For the sake of clarity, we first note that the implied consent proceedings before us are not criminal driving while under the influence proceedings. Rather, we are asked to review civil license suspension proceedings. These have a lower burden of proof and run on a parallel track to any criminal proceedings.

Ingram, 162 Wn.2d at 517-18.

The purpose of the driver's license proceeding is distinct and independent from

those supporting a criminal prosecution. An administrative adjudication does not

usually bar a later criminal prosecution. Thompson v. Dep't of Licensing, 138 Wn.2d

783, 796, 982 P.2d 601 (1999). The converse is also true. Acquittal of a criminal

charge, such as driving while intoxicated, does not bar a later civil license revocation.

Fritts v. Dep't of Motor Vehicles, 6 Wn. App. 233, 240, 492 P.2d 558 (1971) (implied

consent license revocation).

In Bell v. Department of Motor Vehicles, 6 Wn. App. 736, 496 P.2d 545 (1972),

the driver there argued that the appropriate standard of proof in a license revocation

proceeding is proof beyond a reasonable doubt. We disagreed, reasoning, "Such a

contention would be totally inconsistent with our prior determination that a license

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revocation proceeding is civil and not criminal in nature. Fritts v. Dept. of Motor

Vehicles, supra." Bell, 6 Wn. App. at 740.

We conclude neither legislative intent nor case authority supports application of

the heightened criminal standard to a driver's license suspension proceeding under the

prohibited practices statue, RCW 46.20.291(7) and the misdemeanor penalty statute,

Clear, Cogent, and Convincing Standard

Both parties acknowledge that suspension of a driver's license for a statutorily

defined cause implicates a property interest protected by due process. Mackev v.

Montrvm. 443 U.S. 1, 99 S. Ct. 2612, 61 L Ed. 2d 321 (1979); City of Redmond v.

Bagbv. 155 Wn.2d 59, 62, 117 P.3d 1126 (2005). Accordingly, the principal question in

this case is what process is due to protect against the erroneous deprivation of that

interest.

Due Process under Mathews v. Eldridge11

Yuri argues in the alternative that because "the allegation of criminal fraud is

tantamount to civil fraud, the clear, cogent and convincing evidence standard should

apply." Br. of Appellant at 18. He analogizes his case to a common law fraudulent

representation claim where the clear, cogent, and convincing standard applies. He also

repeats his argument that the department's "allegation of criminal misdemeanor fraud"

warrants "a heightened standard of review." Appellant's Reply Br. at 13; see Br. of

Appellant at 18-21. We disagree.

11 Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

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Principles of due process control what process is required, including the proper

standard of proof.12,13 Procedural due process requires both notice and an opportunity

to be heard "'at a meaningful time and in a meaningful manner,'" appropriate to the

case. Amunrud v. Bd. of Appeals. 158 Wn.2d 208, 216, 143 P.3d 571 (2006) (quoting

Mathews v. Eldridge. 424 U.S. 319, 348, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).

Due process is flexible and calls for such procedural protections as the particular

situation demands. Mathews, 424 U.S. at 334. To determine the process due, courts

balance (1) the private interests involved, (2) the likelihood of erroneous deprivation,

and (3) the government interest involved. City of Bremerton v. Hawkins, 155 Wn.2d

107, 110, 117 P.3d 1132 (2005) (citing Mathews. 424 U.S. 319). "A process satisfies

minimum constitutional requisites inherently due when it provides adequate safeguards

to the citizen confronted by an action instigated against him by the state." Nguyen v.

Dep't of Health Med. Quality Assurance Comm'n. 144 Wn.2d 516, 524, 29 P.3d 689

(2001).

The function of a standard of proof is to instruct the fact finder of the degree of

confidence our society thinks it should have in the correctness of factual conclusions for

a particular type of adjudication. In re A.W.. No. 90393-0, 2015 WL 710549 (Feb. 19,

2015) (preponderance of the evidence standard of proof satisfies due process in

guardianship proceeding, chapter 13.36 RCW, creating permanency for children in

12 Yuri does not allege a due process violation under our state's constitution. The Washington Supreme Court has held that the state constitution does not afford greater due process protections than the federal constitution. See, e.g.. In re Pers. Restraint of Dyer. 143 Wn.2d 384, 394, 20 P.3d 907 (2001) ("Washington's due process clause does not afford broader protection than the Fourteenth Amendment."); State v. McCormick, 166 Wn.2d 689, 699, 213 P.3d 32 (2009).

13 We note that Yuri's opening brief barely addresses the Mathews analysis. -12- 71219-5-1/13

foster care). To determine whether existing procedures are fundamentally fair and

comport with procedural due process requirements, we consider the three Mathews

factors.

1. Private Interest

This factor "requires identification of the nature and weight of the private interest

affected by the official action challenged." City of Redmond v. Moore, 151 Wn.2d 664,

670, 91 P.3d 875 (2004).

In Moore, the court held that the continued use of a driver's license is important

because it can significantly affect a person's ability to earn a living and noted the United

States Supreme Court's holding that such an interest is "substantial." City of Bellevue v.

Lee, 166Wn.2d581.586, 210P.3d 1011 (2009).

In Scheffel, defendants challenged the revocation of their licenses to drive for

being habitual traffic offenders on the basis of multiple offences of driving while under

the influence of alcohol. Among other claims, defendants asserted denial of procedural

due process under the Habitual Traffic Offenders Act, chapter 46.65 RCW. Rejecting

the due process challenge, the court observed that the privilege to drive is always

subject to reasonable government control.

The privilege to operate an automobile is a valuable one and may not be unreasonably or arbitrarily taken away; however, the enjoyment of the privilege depends upon compliance with the conditions prescribed by the law and is always subject to such reasonable regulation and control as the legislature may see fit to impose under the police power in the interest of public safety and welfare.

Scheffel, 82 Wn.2d at 880.

Furthermore, "[t]he duration of any potentially wrongful deprivation of a property

interest is an important factor in assessing the impact of official action on the private

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interest involved." Mackey, 443 U.S. at 12. Under the licensing scheme here, a person

challenging a license suspension is entitled to a formal hearing and subsequent appeal

to superior court. An initial decision by the department to suspend a person's privilege

to drive is stayed while the formal hearing and superior court appeal are pending. RCW

46.20.329. Thus, the duration of the potential erroneous deprivation is minimal because

the statutory scheme provides for a prompt formal evidentiary hearing,14 and prompt de

novo15 superior court appeal,16 and the department's suspension decision is stayed

during this period. Amunrud, 158 Wn.2d at 217-18 (in determining existence of

procedural due process violation under statute suspending commercial driver's license

for failure to pay child support, court considered potential duration of deprivation and

whether stay of suspension pending outcome is available; court concluded no

procedural or substantive due process violation).

Any potential deprivation of Yuri's privilege is not permanent. He is entitled to

reinstatement assuming compliance with license requirements for reinstatement.

Santoskv v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (once

affirmed on appeal, a decision terminating parental rights is final and irrevocable thus

warranting elevated standard of proof).

14 A person whose driving privilege is suspended may request a formal hearing. The department "shall" schedule a time and place for such hearing "as early as may be arranged." RCW 46.20.329.

15 The term "de novo" means "'[a] new; [a] fresh; [a] second time." Dep't of Motor Vehicles v. Andersen, 84 Wn.2d 334, 339, 525 P.2d 739 (1974) (alterations in original) (quoting Fosterv. Carson Sch. Dist. 301. 63 Wn.2d 29, 32, 385 P.2d 367 (1963)). 16 Any person whose driving privilege is suspended "[has] the right within thirty days" after receiving the decision from a formal hearing to file a notice ofappeal in superior court. RCW 46.20.334. -14- 71219-5-1/15

No Washington case authority holds due process requires a heightened burden

of proof in a proceeding to suspend or revoke a driver's license. Indeed, the

preponderance standard applies to other driver license suspension or revocation

proceedings. O'Neill v. Dep't of Licensing. 62 Wn. App. 112, 116, 813 P.2d 166(1991)

(preponderance standard required to suspend a driver's license under implied consent

statute, RCW 46.20.308); State v. Malone. 9 Wn. App. 122, 130-31, 511 P.2d 67 (1973)

(preponderance standard required to revoke driver's license of habitual traffic offender).

The private interest in a licensee's driver's license under the prohibited practices

statute, RCW 46.20.291, and the misdemeanor penalty statute, RCW 46.20.0921 (1)(e),

is no greater than under the implied consent or habitual traffic offender statutes.

2. Risk of Erroneous Deprivation

This factor considers "the risk of erroneous deprivation of the interest at stake

through the procedures used and the probable value, if any, of additional or substitute

safeguards." Moore, 151 Wn.2d at 671. The department's order suspended Yuri's

driver's license for 364 days. It "is authorized to suspend the license of a driver upon a

showing by its records or other sufficient evidence" that the licensee "[h]as committed

one of the prohibited practices relating to drivers' licenses defined in RCW 46.20.0921."

RCW 46.20.291 (7).

One of the prohibited practices is to "use a false or fictitious name in any

application for a driver's license or identicard or to knowingly make a false statement or

to knowingly conceal a material fact or otherwise commit a fraud in any such

application." RCW 46.20.0921 (1)(e). The department has adopted an administrative

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regulation that governs the length of a suspension under RCW 46.20.0921 (1)(e). WAC

308-104-075 provides in part:

The department shall suspend, cancel, or deny all driving privileges of a person who has been convicted of or determined by the department to have committed one of the prohibited practices relating to drivers' licenses listed in RCW 40.20.0921 for a period of not less than sixty consecutive days and not more than three hundred sixty-four consecutive days.

As to the length of the suspension, an "agency's determination of sanctions should be

accorded considerable judicial deference as it is peculiarly a matter of administrative

competence." In re Discipline of Brown. 94 Wn. App. 7, 16, 972 P.2d 101 (1998).17

Under Mathews, we consider both the risk of erroneous deprivation resulting

from the preponderance standard and the likelihood that an enhanced standard would

reduce that risk. Mathews, 424 U.S. at 335.

Yuri fails to identify how the hearing procedures afforded him in this case subject

drivers to unreasonable risks of error. Nor does he analyze how an enhanced burden of

proof would reduce the risk of erroneous deprivation. He presented no evidence of

unreasonable risks of error based on application of the preponderance standard in this

case. For example, he claims, "The DOL is engaged in a large volume business and, to

keep up with the demand, it has employed a number of crude computer techniques

. . . ."18 Appellant's Reply at 15. Due process does not require an error-free process, so

17 Yuri does not challenge the length of the suspension in this appeal. The department's rationale for the maximum period of suspension was based on the State's claim that Yuri "obtained an original driver's license in his brother's name," renewed it using his brother's name, and continued his 10 years of "fraudulent activity" until the department discovered it.

18 This assertion is unfounded. We assume he means the facial recognition software. RCW 46.20.037 provides in part: -16- 71219-5-1/17

the mere possibility of an error is insufficient to invalidate the process. Lee, 166 Wn.2d

at 585.

As noted above, the statutory scheme relating to challenging the department's

license suspension order includes notice and an opportunity for a driver improvement

interview, formal hearing, and de novo appeal to superior court. The de novo hearing

entails a full and independent judicial, evidentiary, and factual review, which includes

the right to a trial by jury on appropriate demand. The licensee may retain an attorney,

testify on his own behalf, present witnesses and exhibits, cross-examine witnesses,

object to evidence, submit briefs, and make appropriate motions.

In Department of Motor Vehicles v. Andersen. 84 Wn.2d 334, 525 P.2d 739

(1974), the court described the lack of legal and factual complexity inherent to the

administrative suspension of a driver's license.

[T]he mixed fact and law questions and disputable issues revolving about an administrative decision of revocation, suspension, cancellation, or refusal of a motor vehicle driver's license are limited and relatively uncomplicated. Likewise, the result flowing from a given resolution of the relevant and disputable issues is direct and reasonably certain. On the average, resolution of the issues and the ensuing result does not require the exercise of that degree of administrative experience and expertise as is demanded and projected into such administrative or regulatory areas as the utility, banking, tax, ecology, or professional fields. In an implied-consent, revocation situation, for example, the question to be

"Facial recognition matching system. (1) The department may implement a facial recognition matching system for drivers' licenses, permits, and identicards. Any facial recognition matching system selected by the department must be used only to verify the identity of an applicant for or holder of a driver's license, permit, or identicard to determine whether the person has been issued a driver's license, permit, or identicard under a different name or names. "(2) Any facial recognition matching system selected by the department must be capable of highly accurate matching, and must be compliant with appropriate standards established by the American association of motor vehicle administrators that exist on June 7, 2012, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section." (Boldface omitted.) -17- 71219-5-1/18

resolved, if contested by the licensee, and the result to follow are defined and restricted by statute.

Andersen, 84 Wn.2d at 340. The risk of erroneous deprivation here is minimal as a

consequence of the procedures used.

3. Governmental Interest

This factor addresses the State's interest in the fiscal and administrative burden

that additional or substitute procedural requirements would entail. Mathews, 424 U.S.

at 334-35. The department argues that ensuring driver's licenses are authentic

implicates public safety and consumer protection concerns because they are used as

official identification. Drivers are required to have a valid license in their possession

while operating a motor vehicle. RCW 46.20.017. A valid license ensures the state's

interest in financial responsibility and competent drivers. Retailers must request

identification, including a driver's license, for the purchase of tobacco when there is a

question of the purchaser's age. RCW 70.155.090. The legislature found that the

falsification of cards is a serious social problem impeding the efficient conduct of

commerce and government.19

The legislature finds that the falsification of cards and licenses is a serious social problem creating economic hardship and problems which impede the efficient conduct of commerce and government. The legislature is particularly concerned that the increasing use of false drivers' licenses and identicards to purchase liquor, to cash bad checks, and to obtain food stamps and other benefits is causing the loss of liquor licenses, the loss of jobs, the loss of income, and the loss of human life in addition to significant monetary losses in business and government. It is the purpose of section 2 of this act to require an effective means of rendering drivers' licenses and identicards as immune as possible from

19 RCW 46.20.114 provides: "Preventing alteration or reproduction. The department shall prepare and issue drivers' licenses and identicards using processes that prohibit as nearly as possible the alteration or reproduction of such cards, or the superimposing of other photographs on such cards, without ready detection." (Boldface omitted.) -18- 71219-5-1/19

alteration and counterfeiting in order to promote the public health and safety of the people of this state.

Laws of 1977, 1st Ex. Sess., ch. 27, § 1. Furthermore, the State has a compelling

interest in keeping unsafe drivers off the roadways. Moore, 151 Wn.2d at 677. A

license obtained using a false or fictitious name undermines these compelling state

interests.

Yuri acknowledges the department's interest in protecting the identity of its

citizens but maintains that reasonable regulation is not undermined by imposing the

enhanced civil standard. Appellant's Reply Br. at 16. We are not persuaded by this

assertion. As discussed above, the state has an interest in public safety and consumer

protection through ensuring the authenticity of driver's licenses. The state also has an

administrative and fiscal interest in reducing the cost and burden of determining the

authenticity of driver's licenses while still affording licensees significant procedural

protections. "[T]he [state] does have an interest in the efficient and cost-effective

administration of the driver's license system .. . ." Lee, 166 Wn.2d at 589. The state's

interest weighs toward using the preponderance of the evidence standard.

Civil Fraud

Yuri also argues that the common law fraud standard of clear, cogent, and

convincing evidence applied to his license suspension proceeding. We disagree, as

discussed above. In addition, Yuri's use of his brother's name in his 2009 application

for a driver's license is a prohibited practice under RCW 46.20.0921(1)(e)'s

misdemeanor penalty statute. This statute requires proof of only one of the acts defined

in subsection (1)(e), "use a false or fictitious name ... or to knowingly make a false

statement or to knowingly conceal a material fact or otherwise commit a fraud

-19- 71219-5-1/20

(Emphasis added.) The statue is written in the disjunctive. We presume "or" is used in

a statute disjunctively unless there is clear legislative intent to the contrary. Guijosa v.

Wal-Mart Stores. Inc.. 101 Wn. App. 777, 790, 6 P.3d 583 (2000). Although Yuri's

assertion that the department must prove civil fraud is questionable, we need not

address that issue. The plain reading of the misdemeanor penalty statute, RCW

46.20.0921 (1)(e), authorizes the department to suspend Yuri's license based on any

one of the prohibited practices, including the use of a false or fictitious name. Here, the

court properly concluded that based on substantial evidence discussed below, the

preponderance of the evidence establishes Yuri used a false or fictitious name in his

application for a driver's license. He used his brother's name when he applied to renew

his 2009 application.

Substantial Evidence

Yuri contends that the evidence presented below supports only one valid

conclusion—the department lacked sufficient evidence to establish he used a false or

fictitious name in his 2009 license application. Yuri challenges the following findings of

fact:

2. On January 28, 2009, Yuri Prostov appeared in person at the Kirkland Licensing Center and presented himself as Geirman Prostov. Yuri requested and was issued a renewal WA driver's license in the false name of Geirman Prostov.

7. Mr. Yuri Prostov's own testimony and the court['s] own visual observations confirm that Mr. Yuri Prostov has an identifiable scar that extends from the right side of his upper lip to the bottom of his nose. His twin brother, Geirman Prostov, has no such scar. Mr. Yuri Prostov's nose is also straighter than Geirman Prostov's nose, which bends slightly to the left. 8. Visual comparison of true and correct photos of Yuri Prostov (Exhibit 1R, 1S), the true and correct photo of Geirman Prostov (Exhibit 1V), and the driver's license photo at issue (Exhibit 1T, 1U) confirms that the driver's license

-20- 71219-5-1/21

issued on January 28, 2009 (Exhibit 1T, 1U), issued under the name of Geirman Prostov contains the photograph of Yuri Prostov. 9. The court finds that the license issued under Geirman's name in Exhibit 1T, 1U is significantly different from the photo of Geirman in Exhibit 1V. Rather, the photo in Exhibit 1T, 1U contains the same identifiable scar and nose structure as present on the photos of Yuri Prostov found in Exhibits 1R, 1S. 10. On August 7, 2012, following the investigation, the Department sent an Order of Suspension to Yuri Prostov, ordering him to stop driving a motor vehicle within the State on August 27, 2012. The Order notified Mr. Prostov that his driving privilege was suspended for 364 days for knowingly concealing a material fact or knowingly making a false statement in an application for a driver's license, instruction permit or identification card. 11. Yuri Prostov requested an administrative interview to consider the suspension of his driving privilege. After an administrative interview, a hearing officer from the Department upheld the suspension. 12. Yuri Prostov appealed the Department's order to the superior court.

When the trial court has weighed the evidence, our review is limited to

determining whether the trial court's findings are supported by substantial evidence,

and, if so, whether the findings in turn support the conclusions of law. Shelden v. Dep't

of Licensing, 68 Wn. App. 681, 684-85, 845 P.2d 341 (1993); Ridgeview Props, v.

Starbuck. 96 Wn.2d 716, 719, 638 P.2d 1231 (1982). Substantial evidence is evidence

sufficient to persuade a rational, fair-minded person of the finding's truth. Maplewood

Estate. Inc. v. Dep't of Labor & Indus., 104 Wn. App. 299, 304, 17 P.3d 621 (2000).

This court need only consider whether the evidence most favorable to the prevailing

party supports the challenged findings, even ifthe evidence is in conflict. Shelden, 68

Wn. App. at 684-84. The court must defer to the trier of fact on issues of conflicting

testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.

Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). It is not the role of appellate

courts to weigh and evaluate conflicting evidence. Burnside v. Simpson Paper Co., 66

Wn. App. 510, 832 P.2d 537 (1992), affd, 123 Wn.2d 93, 864 P.2d 937 (1994).

-21- 71219-5-1/22

At trial, Yuri identified and confirmed that certain exhibits admitted into evidence

and gathered from the DOL records were accurate photos of himself and his brother.

He confirmed the existence since 2001 of a scar on the right side of his upper lip. He

also acknowledged that his brother had no facial scar.

The court noted the good quality of these color DOL photos. The trial court

compared the physical features depicted in the DOL photos of Yuri and his brother. It

observed that Yuri's facial scar was apparent in these photos. Finally, the court's

conclusion that Yuri used a false or fictitious name to obtain the 2009 driver's license

was based on its own in court observations of Yuri:

Mr. Yuri Prostov's own testimony and the court['s] own visual observations confirm that Mr. Yuri Prostov has an identifiable scar that extends from the right side of his upper lip to the bottom of his nose. His twin brother, Geirman Prostov, has no such scar. Mr. Yuri Prostov's nose is also straighter than Geirman Prostov's nose, which bends slightly to the left.

Yuri claims, "The DOL offered no other evidence other than the few photos, and

the DOL's allegations were firmly denied by Mr. Prostov," equating this case to a "he

said, she said" situation. Br. of Appellant at 25. Yuri's substantial evidence challenge

amounts to argument over the weight of the evidence and the credibility of witnesses.

Our review of the record evidence establishes that substantial evidence supports the

trial court's determination in this case. For example, the court observed, "The scar is

quite visible in Exhibit T." RP at 172. Exhibit T is a reproduced and enlarged color

photo of the 2009 driver's license at issue here. It bears the photo image of Yuri but the

printed name, address, and purported signature of Geirman, Yuri's brother. Yuri

acknowledged he has a facial scar and Geirman does not. We decline to substitute our

judgment for the trial court's, weigh the evidence, or adjudge witness credibility. Greene

-22- 71219-5-1/23

v. Greene. 97 Wn. App. 708, 714, 986 P.2d 144 (1999). Yuri's substantial evidence

claim fails. The trial court's findings are supported by substantial evidence and in turn

support the conclusion that Yuri used a false or fictitious name in his 2009 license

application.

Essential Element

Yuri contends that the department "failed to prove an essential element of the

criminal allegation—an 'application' for licensure. There was no proof of a fraudulent

'application' for licensure or identicard, which is a required element for proving the

DOL's allegation of criminal fraud." Br. of Appellant at 26 (boldface and capitalization

omitted). We question whether this issue is properly preserved on appeal. The record

shows Yuri never raised the issue below. Yuri fails to cite the record where the court

ruled on this issue. Generally, an appellate court will not consider issues raised for the

first time on appeal. RAP 2.5(a). A party must inform the court of the rules of law it

wishes the court to apply and offer the trial court an opportunity to correct any error.

Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). "While an appellate court

retains the discretion to consider an issue raised for the first time on appeal, such

discretion is rarely exercised." Karlberg v. Often, 167 Wn. App. 522, 531, 280 P.3d

1123 (2012). Yuri fails to argue why an exception to this rule applies in this case.20

This claim fails nonetheless because it rests on the erroneous assumption that this is a

criminal proceeding. There is substantial record evidence that Yuri appeared at the

20 Yuri's reply brief includes, for the first time, copies of unauthenticated portions of the DOL's policy manual. Appendix A. We decline to consider these materials. Nothing in our record shows that these materials were submitted to the trial court. And submitting these materials in his reply brief is fundamentally unfair to the department. It deprived the department of an opportunity to respond.

-23- 71219-5-1/24

Kirkland Licensing Center and requested to renew his driver's license using his

brother's name. Laurie Provoe's uncontested testimony established that a paper

application to renew a driver's license is not required. Appearing in person and orally

requesting a license constitutes an application under the department's practice. Under

RCW 46.20.0921 (1)(e), it is a violation to use a false or fictitious name in "any

application." Oral renewal application here satisfies this statutory requirement. This

claim fails.

Jury Trial Right

Yuri claims that he was denied his constitutional right to trial by jury.21 We

disagree. De novo review by the trial court includes the right to a trial by jury. Dep't of

Motor Vehicles v. Andersen, 84 Wn.2d 334, 340, 525 P.2d 739 (1974).

Yuri waived this issue for review because he did not raise it with the trial court.

Failure to raise the jury trial issue to the trial court waives the issue on appeal. State v.

Wicke, 91 Wn.2d 638, 646, 591 P.2d 452 (1979). Yuri wrote in his trial court brief, "No

party has requested a jury trial and, therefore, it is a bench trial with de novo review."

The case schedule order in this case notified the parties about the various deadlines.

KCLCR 4. It required the filing of a jury demand no later than June 5, 2013.

Civil Rule 38 also requires Yuri to serve a jury trial demand on the parties, file the

demand with the court clerk, and pay a jury fee. Yuri did none of these things.22 Under

21 Yuri arguably invited this error. Under the invited error doctrine, a party may not set up an error at trial and then complain of it on appeal. In re Pers. Restraint of Thompson, 141 Wn.2d 712, 723, 10 P.3d 380 (2000). The doctrine applies when a party takes an affirmative and voluntary action that induces the trial court to take an action that party later challenges on appeal. Thompson. 141 Wn.2d at 723-24.

-24- 71219-5-1/25

CR 38(d),23 this failure constitutes waiver of the right to a jury trial. As discussed above,

because the license suspension proceeding is civil in nature, we decline to address

Yuri's further contention that CrR 6.1(a) requires a "written waiver of a jury trial, and has

consent of the court."

Failure to Call Witness

Yuri also claims the trial court "erred when it considered the DOL's [Department

of Licensing] failure to call GP [Geirman] as a factor weighing against Mr. Prostov

[Yuri]." Br. of Appellant at 3. He provides no argument and cites no authority. The

failure of an appellant to provide argument and citation of authority in support of an

assignment of error precludes appellate consideration of an alleged error.24 Avellaneda

v. State, 167 Wn. App. 474, 482 n.5, 273 P.3d 477 (2012). A party abandons

assignments of error unsupported by argument and will not be considered on appeal.

Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992);

RAP 10.3(a)(6). We decline to consider the argument here.

22 According to the department, Yuri faxed it a pro se letter entitled "Petition For A Jury Trial." Br. of Resp't at 39 n.10. This document does not appear in the record.

23 CR 38(d) provides in part: The failure of a party to serve a demand as required by this rule, to file it as required by this rule, and to pay the jury fee required by law in accordance with this rule, constitutes a waiver by him of trial by jury.

24 Yuri also claims, "The trial court erred by not dismissing the case after it found that the DOL failed to show any motive or other mens rea to support its claims." Br. of Appellant at 3-4. He cites no authority and presents no argument related to this assignment of error in his brief. We decline to address this claim. Cowiche Canyon, 118 Wn.2d at 809; Avellaneda. 167 Wn. App. at 482 n.5. -25- 71219-5-1/26

Egual Access to Justice Act

Yuri contends the trial court erred by denying him attorney fees under

Washington's equal access to justice act (EAJA), RCW 4.84.350.

The EAJA requires a court to award attorney fees to a prevailing party where

certain conditions are met:

Except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys' fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust. A qualified party shall be considered to have prevailed if the qualified party obtained relief on a significant issue that achieves some benefit that the qualified party sought.

RCW 4.84.350(1). A trial court's award of attorney fees under the EAJA is reviewed for

abuse of discretion. Raven v. Dep't of Soc. & Health Servs., 177 Wn.2d 804, 832, 306

P.3d 920 (2013). Yuri claims he prevailed below because the court found insufficient

evidence to support the alleged 2001 fraud. Even assuming without deciding that the

EAJA applies here, Yuri appealed and the court affirmed his license suspension. He did

not obtain the relief he sought. The trial court properly denied Yuri's request to award

attorney fees under the EAJA.25

CONCLUSION26

Because the preponderance standard of proof in this driver's license suspension

proceeding under RCW 46.20.291 and RCW46.20.0921(1)(e) strikes a fair balance

25 Because Yuri is not the prevailing party, we decline to award fees under RAP 18.1. 26 Yuri moved to strike portions of the department's briefing. Generally, we decline to grant such motions so long as the moving party has an opportunity to include argument in its briefing. Enostrom v. Goodman. 166 Wn. App. 905, 909 n. 2, 271 P.3d 959 (2012). Because Yuri had this opportunity, we decline to grant the motion to strike.

-26- 71219-5-1/27

between the interests of the state and a licensee and adequately conveys to the fact

finder the level of certainty about the factual conclusions to satisfy due process, and

because Yuri's remaining challenges fail, we affirm his license suspension. We also

affirm the trial court order denying his request for attorney fees.

WE CONCUR:

^Qurt=i&^ _Qed^c^J:

-27-