Governor Inslee Forgot to Protect the Rights of the Accused

WA Capitol Building

While this office applauds the quick efforts of our Governor and the Courts system to flatten the curve and limit the spread of the deadly virus threatening our society right now, an astonishing oversight was made in an April 3, 2020 Proclamation from the Governor, one that damages the rights of the accused and advances an already unfair systemic pre-conviction suspension of driver’s licenses.

First, some background. When a subject is arrested for a DUI and provides a breath sample that is allegedly above .08 (or if they allegedly refuse a breath test) the “implied consent statute” of Washington allows for a suspension of their driver’s privilege under RCW 46.20.308. (NOTE: there are other circumstances that cause this suspension, such as blood results, etc.) Because citizens are entitled to due process of law, they have the ability to request a hearing to challenge this suspension. They do so by mailing in (or submitting online) a hearing request to the Department of Licensing within seven days of the date of their arrest. The cost for this is $375. If the request is postmarked on day 8, the DOL will not grant a hearing or a refund. A citizen has seven days, period.

The Department of Licensing then must grant them a hearing. According to RCW 46.20.308(7) “This hearing shall be held within thirty days…”

The hearing, conducted by telephone, is designed to uphold suspension actions and is one of the only administrative hearings in our State where you are not entitled to an independent Administrative Law Judge. The Hearings Examiners are employees of the Department of Licensing. Yes, you read that correctly.

The agency that wants to suspend a license gets to decide if they get to or not.

However, the saving grace is that there are rules and laws that govern how that suspension can be upheld - procedural rules as well as substantive ones.

Except that Jay Inslee has now eliminated one of the procedural rules.

Per Proclamation 20-42 “Department of Licensing - Driver License Suspension,” issued last week by Governor Inslee, the 30-day hearing requirement is “waived and suspended.”

This suspension of a required due process hearing is based on several fallacies:

  1. Governor Inslee alleges that: “the Department of Licensing is experiencing difficulty obtaining necessary sanitation products and ensuring appropriate social distancing to mitigate the spread of the COVID-19 virus to employees and members of the public while conducting even limited operations, including the ability to timely conduct administrative hearings.” Untrue. These hearings are conducted by telephone. I have never in fifteen years in practice come face to face with a DOL hearings examiner. Many of the hearings examiners have home offices and were being told weeks ago to work from home. There is nothing that prevents these hearings from going forward during isolation.
  1. Governor Inslee tells us right up front that his purpose is: “to assist the Department of Licensing in addressing these issues and to avoid DUI license suspensions from being dismissed.” Consider that many of these hearings happen before criminal charges are even brought against defendants. Almost all are conducted before any conviction can be had. These are citizens that are accused and as such presumed innocent.

I grant you that conducting these hearings is more difficult during this crisis. It’s harder to get subpoenas served, it’s harder to get clients and witnesses on the phone together and to get technology to work. To be very clear I don’t have a problem with the 30-day requirement being waived.

What I have a problem with is the deference shown to the Department of Licensing when zero grace or deference is shown to the accused individuals or their representatives. You’ll notice that the proclamation doesn’t suspend the seven-day requirement for the request of the hearing.

In short, this proclamation makes it so that the rules don’t apply to HALF of the parties in the hearing - specifically, the half that already has the upper hand: The Department of Licensing. Does it take into account at all the rights of the accused to remain at home and healthy during lockdown? No. Does it take into account the fact that every time a presumed innocent driver goes into the post office they are literally taking their lives in their own hands? No. Does it take into account at all that the world has changed for ordinary people who want their due process? No.

What it does is make due process less procedural. It deprives citizens of it unfairly and arbitrarily.

So, Governor Inslee - if you’re going to make exceptions (which I don’t disagree with) - how about we make them apply across the board, instead of just to the Government folks?

In the meantime, if you or a loved one find yourself dealing with the DOL or Courts through the COVID-19 Crisis and need a guide through it who will not rest until every opportunity is explored for your rights to be protected, call our dedicated Lynnwood DUI Lawyers at (425) 296-9358 for your free consultation.

Heroes rise to keep things fair. You deserve fairness. You need DUIHeroes.