State v. Nelson

J.M. Johnson, J.

(dissenting) — Department of Licensing (DOL) violated Mark P. Nelson’s constitutional right to due process when it failed to provide Mr. Nelson a hearing notice reasonably calculated to reach him before it revoked his driver’s license. While the majority correctly cites the law governing this case, I believe a careful review of the facts demonstrates that Mr. Nelson’s right to due process was violated. I dissent.

¶19 Mr. Nelson’s address of record as shown on his driver’s license was a residence in Kirkland. However, on December 10, 2000, Mr. Nelson was booked into the North Rehabilitation Facility (NRF) to serve sentences and receive alcohol treatment. On January 3, 2001, while he was residing at NRF, Mr. Nelson sent a driver’s license inquiry form to DOL (DOL received the document on January 11, 2001). The inquiry stated:

My driver’s license has been suspended or revoked. Would you please send me complete information about everything I need to do to have my license reinstated. Thank you for your assistance with this matter.

Clerk’s Papers at 91. The inquiry contained Mr. Nelson’s date of birth, license number, and signature. The inquiry also contained the following statement:

If I have filled in the return address box below, please send the information there, otherwise please send to the North Rehabilitation Facility (NRF) address listed above.

Id. (emphasis added). The return address box was blank, thus indicating he should be contacted at NRF.

¶20 On March 16, 2001, DOL sent via certified mail an order of revocation to Mr. Nelson at his Kirkland home address instead of to his NRF address. The order directed Mr. Nelson to stop driving because his driving privilege was revoked as an habitual traffic offender. In addition to the order, a hearing request form was enclosed, which notified Mr. Nelson that if he desired a hearing he must file such a request by March 31, 2001.

¶21 When the order was sent, Mr. Nelson was incarcerated at NRF, as he had advised DOL. Thus, the order was not delivered and was returned to DOL, unopened, on April 16, 2001.

¶22 On June 11, 2002, the King County prosecuting attorney filed a complaint in district court accusing Mr. Nelson of driving while license suspended/revoked in the first degree, pursuant to RCW 46.20.342(l)(a).

¶23 Prior to trial, Mr. Nelson made a motion to dismiss for violation of due process, citing State v. Dolson, 138 Wn.2d 773, 982 P.2d 100 (1999); City of Redmond v. Arroyo-Murillo, 149 Wn.2d 607, 70 P.3d 947 (2003), discussed below. Mr. Nelson argued that DOL did not mail the order of revocation to an address that was reasonably calculated to inform Mr. Nelson of the revocation. The district court denied Mr. Nelson’s motion to dismiss.

¶24 At trial, Mr. Nelson asserted that he did not have actual knowledge that his license was suspended and that he was prejudiced because he was unable to request a hearing. However, on January 30, 2003, Mr. Nelson was convicted of driving while license suspended/revoked in the first degree (RCW 46.20.342(l)(a)) in King County District Court.

¶25 Mr. Nelson makes an “as applied” challenge that his due process rights were violated because DOL did not send a notice that was reasonably calculated to reach him (he does not argue that actual notice is necessary).

¶26 “An as-applied challenge to the constitutional validity of a statute is characterized by a party’s allegation that application of the statute in the specific context of the party’s actions or intended actions is unconstitutional.” City of Redmond v. Moore, 151 Wn.2d 664, 668-69, 91 P.3d 875 (2004). If we hold a statute unconstitutional as applied, future application of the statute in a similar context is prohibited but the statute is not totally invalidated. Id. at 669.

A driver’s license cannot be revoked without due process of law. Due process requires that the license holder be given notice and an opportunity to be heard prior to the revocation. The notice must be “reasonably calculated to inform the affected [sic] party of the pending action and of the opportunity to object.” The State bears the burden of proving that the revocation complied with due process. If the revocation does not comply with due process, it is void.

Arroyo-Murillo, 149 Wn.2d at 612 (alteration in original) (citations omitted) (quoting Dolson, 138 Wn.2d at 777).

¶27 In Arroyo-Murillo, the petitioner argued, like Mr. Nelson here, that to comply with the requirements of due process, DOL should have sent the notice of revocation to two addresses. Arroyo-Murillo, 149 Wn.2d at 611. In that case, DOL sent petitioner an order of revocation and a hearing request form to petitioner’s address of record at “921 139th Avenue NE” (921 address). Id. at 610. DOL had obtained the 921 address and updated its records based on a traffic ticket that was issued to petitioner and forwarded to the DOL. Id. Prior to the traffic ticket, petitioner’s address of record, “15500 NE 11th Street” (15500 address), was based on the identicard (identification card) application submitted to DOL. Id. When DOL revoked petitioner’s license, it sent the order of revocation only to the 921 address. Id. Petitioner argued that his due process rights were violated because DOL sent the notice of revocation only to the 921 address when it should have sent it to both the 921 address and the 15500 address. Id. at 611.

¶28 This court held that there is nothing in either ROW 46.20.205 or 46.65.065 that requires DOL to send the notice to addresses other than the address of record. Id. at 617. However, the court expressly noted that petitioner was not making an “as applied” constitutional challenge. See id. at 617 n.8.

¶29 Mr. Nelson is now making an as applied challenge, arguing that because DOL had actual knowledge that Nelson was incarcerated at NRF, DOL should have either sent the notice to that address (which he had furnished to DOL) or investigated whether he was still incarcerated. The United States Supreme Court has ruled in a similar case.

¶30 In Robinson v. Hanrahan, 409 U.S. 38, 93 S. Ct. 30, 34 L. Ed. 2d 47 (1972), the United States Supreme Court decided that an imprisoned appellant did not receive due process when the State sent forfeiture notices to his home address rather than to the jail facility at which he was held. The Illinois vehicle forfeiture statute authorized service of notice by certified mail to the address as listed in the records of the secretary of state. Id. at 38 n.l. The Court noted that the State knew appellant was not at the address to which the notice was mailed, and the State also knew appellant could not get to that address since he was, at that very time, confined in the county jail. Id. at 40. Thus, the Supreme Court held that the State violated appellant’s due process rights because it had not provided notice reasonably calculated to apprise appellant of the proceedings and the State knew that appellant was incarcerated when the notice was sent. Id.

¶31 In the instant case, Mr. Nelson was imprisoned at the time DOL mailed the order of revocation. Moreover, Mr. Nelson had contacted DOL before the order was sent, giving DOL actual knowledge of his location at NRF. This letter put DOL on notice that Mr. Nelson should be contacted at that facility and would not be reachable at his address of record. The return to DOL of its notice as undeliverable further confirmed that conclusion. In order for DOL to give notice that was reasonably calculated to inform Mr. Nelson of the revocation, DOL should have first determined whether Mr. Nelson was still detained at NRF (an easy inquiry). When it determined that Mr. Nelson was still at NRF, DOL should have sent the order of revocation to NRF and to his address of record. This is not unduly burdensome, especially where Nelson advised DOL of his facility address.

¶32 This court has previously stated that while the “inconvenience of sending multiple notices to one license holder may be minimal, the cumulative effect of requiring the DOL to do so for all revocation notices would be onerous.” Arroyo-Murillo, 149 Wn.2d at 618. But here, DOL need not send multiple notifications to every person, just Mr. Nelson and the few persons in similar situations. When balancing the burden on DOL with the violation of Mr. Nelson’s due process rights, the balance favors protection of constitutional due process rights.

¶33 I would follow the United States Supreme Court’s reasoning in Robinson v. Hanrahan and find that DOL violated Mr. Nelson’s due process rights because it did not send notice that was reasonably calculated to reach him. These constitutional rights must be vigorously protected from government. I dissent.

C. Johnson and Sanders, JJ., concur with J.M. Johnson, J.