James D. Watkins, V State Of Wa, Dept. Of Licensing

COURT OP APPEALS
DIVISION II
2E115 HAY 1 2 AM 8: 4 n
IN THE COURT OF APPEALS OF THE STATE OF WA- ul``'' rTON
DIVISION II
JAMES WATKINS, No. 45327 -4 -II
Respondent,
v.
STATE OF WASHINGTON; PUBLISHED OPINION
DEPARTMENT OF LICENSING,
Petitioner.
WoRSwICK, J. — James Watkins was arrested for driving under the influence of alcohol
and the Department of Licensing notified him that it would be revoking his driving privileges for
refusing to take a breath test. After the Department' s hearings examiner ruled that Watkins' s
privileges should be revoked, the superior court reversed the ruling because the arresting officer
did not certify his report. The Department appeals, arguing that a second officer' s certified
report gave-the Department jurisdiction under the implied consent statutes to revoke Watkins' s
driving privileges, that the arresting officer' s uncertified arrest report was admissible because it
accompanied the certified report, and that admitting the arresting officer' s uncertified report did
not violate due process. We agree with the Department, reverse the superior court, and affirm
the hearing examiner' s ruling sustaining the revocation of Watkins' s driving privileges.
1
Former RCW 46. 20. 308 ( 2012) ( amended Laws 2012, ch. 80, § 12); see also Didlake v.
by of
Wash. State, Wn.App. , 345 P.3d 43, 46 n. 13 ( 2015). We refer to the version of former
RCW 46. 20. 308 that was in effect when Watkins requested his administrative hearing on
December 3, 2012.
No. 45327 -4 -II
FACTS
Officer Matthew Smith stopped a vehicle being driven by James Watkins. Watkins had
watery and bloodshot eyes and a strong odor of intoxicants coming from his person. After
Watkins refused to submit to field sobriety tests, Officer Smith arrested Watkins for driving
under the influence of alcohol ( DUI).
Officer Smith transported Watkins to the Fircrest Police Department to meet with
Washington State Trooper Timothy Rushton for DUI processing. Trooper Rushton provided
Watkins with the warnings required by the implied consent statute and asked Watkins whether he
would take a breath test. Former RCW 46. 20. 308 ( 2012). Watkins refused.
Trooper Rushton submitted a 16 page exhibit to the Department of Licensing. The
exhibit' s first document was Trooper Rushton' s five page certified report. The first page of
Rushton' s certified report had a checked box next to " Refused Test." Clerk' s Papers ( CP) at 32.
The first page further stated:
The subject was lawfully arrested. At that time, there were -reasonable grounds to
believe that the arrested person had been driving or was in actual physical control
of a motor vehicle within this state while under the influence of intoxicating liquor
or drugs, or both ... .
After receipt of the warnings required by subsection (2) of RCW 46. 20. 308, a test
was administered and the results indicated that the alcohol concentration of the
person' s breath or blood was 0. 08 or more .... OR
After receipt of the warnings required by subsection ( 2) of RCW 46. 20. 308, the
person refused to submit to a test of his /her blood or breath.
I certify ( or declare)
penalty of perjury ...
under that the foregoing and the
accompanying reports /copies of documents and the information contained
therein are true, correct, and accurate.
No. 45327 -4 -II
CP at 32 ( emphasis added). Trooper Rushton signed the first page at the bottom. The exhibit
contained additional documents accompanying Trooper Rushton' s certified report, including
Officer Smith' s uncertified arrest report.
After the Department notified Watkins it would be revoking his driving privileges for one
year for driving under the influence, Watkins requested and received an administrative hearing.
Trooper Rushton testified at the hearing.
The hearing examiner concluded that Trooper Rushton' s certified report gave it
jurisdiction under the implied consent statute to revoke Watkins' s driving privileges and that the
entire exhibit was admissible, including Officer Smith' s uncertified arrest report. The hearing
examiner affirmed the Department' s revocation of Watkins' s driving privileges, ruling that
Officer Smith had a legal basis to pull over Watkins and had probable cause to arrest Watkins.
The hearing examiner also ruled that Officer Smith had reasonable grounds to suspect Watkins
was driving under the influence and that Watkins refused to submit to a breath test after
receiving proper warnings.
Watkins appealed the hearing examiner' s decision to the superior court. The superior
court reversed the hearing examiner, ruling:
The Department erred in relying upon [ Officer Smith' s] unsworn [ and uncertified]
report to establish jurisdiction and probable cause for the stop and arrest. [ Officer
Rushton] could not properly certify another officer' s unsworn [ and uncertified]
report under penalty of perjury. The Department' s action is hereby reversed.
CP at 71. We granted discretionary review. Ruling Granting Review, Watkins v. Dep' t of
Licensing, No. 45327 -4 -II, at 9 ( Wash. Ct. App. Feb. 7, 2014).
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No. 45327 -4 -II
ANALYSIS
The implied consent statute governs our review of the Department' s order. Former RCW
46. 20. 308( 9) ( October 1, 2012); Cannon v. Dep' t ofLicensing, 147 Wash. 2d 41, 48, 50 P.3d 627
2002). The implied consent statute generally provides that a driver is deemed to have consented
to a blood or breath test if at the time of his arrest, the arresting officer has reasonable grounds to
suspect that the driver was operating a motor vehicle under the influence. Former RCW
46.20. 308. If the driver refuses to take the test after receiving a series of required warnings
informing him of his rights, then the person' s driving privileges may be revoked. State v.
Rogers, 37 Wn. App. 728, 731, 683 P.2d 608 ( 1984). The purpose of the implied consent statute
is to "`` insure swift and certain punishment for those who drink and drive, "' and " free
Washington roads of drivers who take the wheel under the influence of alcohol or controlled
substances." State v. Vasquez, 148 Wash. 2d 303, 315, 59 P.3d 648 ( 2002) ( quoting former RCW
46. 20. 308 Historical and Statutory Notes, " Legislative. finding, intent -1983 ch. 165" at 387).
We review the Department' s administrative decisions " from the same position as the
superior court." Clement v. Dep' t ofLicensing, 109 Wash. App. 371, 374, 35 P.3d 1171 ( 2001).
We review errors of law de novo and findings of fact for substantial evidence. See Lynch v.
Dep' t ofLicensing, 163 Wash. App. 697, 705, 262 P.3d 65 ( 2011).
The issue on appeal concerns interpretation of the implied consent statute. Interpretation
of a statute is a question of law that we review de novo. Grey v. Leach, 158 Wash. App. 837, 844,
244 P.3d 970 ( 2010). When interpreting a statute, we seek to ascertain the legislature' s intent.
Dep' t of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4 ( 2002). Where a
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No. 45327 -4 -II
statute' s meaning is plain on its face, we give effect to that meaning as expressing the
legislature' s intent. 146 Wash. 2d at 9 - 10.
I. THE DEPARTMENT' S JURISDICTION To REVOKE WATKINS' S DRIVING PRIVILEGES
The Department argues that although Trooper Rushton was not the arresting officer, his
certified report gave the Department jurisdiction to revoke Watkins' s driving privileges. We
agree.
Former RCW 46. 20. 308 sets forth the procedure that law enforcement and the
Department must follow before revoking driving privileges, stating in part:
2) The test or tests of breath shall be administered at the direction ofa law
enforcement officer having reasonable grounds to believe the person to have been
driving or in actual physical control of a motor vehicle within this state while under
the influence of intoxicating liquor or any drug .... The officer shall warn the
driver, in substantially the following language, [ the following warnings]. .
6) If, after
. arrest and after the other applicable conditions and requirements
of this section have been satisfied ... the person refuses to submit to a test, the
arresting officer or other law enforcement officer at whose direction any test has
been given, or the department, where applicable, if the arrest results in a test of the
person' s blood, shall:
e) Immediately notify the department of the arrest and transmit to the
department ... a sworn report or [ certified] report ... authorized by [ former] RCW
9A.72. 085 [ 1981][ 2] that states:
i) That the officer had reasonable grounds to believe the arrested person
had been driving or was in actual physical control of a motor vehicle within this
state while under the influence of intoxicating liquor or drugs, or both ... .
ii) That after receipt of the warnings required by subsection ( 2) of this
section the person refused to submit to a test of his or her blood or breath ... and
iii) Any other information that the director may require by rule.[3'
2 Former RCW 9A.72. 085 provided that where the law requires or allows a fact to be supported
by a sworn written statement, an unsworn written statement that is certified according to former
RCW 9A.72. 085 will suffice.
3 The parties did not argue, either here or at the superior court, that Department rules required an
officer to provide additional information in the certified report.
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No. 45327 -4 -II
7) The department of licensing, upon the receipt of a sworn report or
certified] report .... under subsection ( 6)( e) of this section, shall suspend, revoke,
or deny the person' s license, permit, or privilege to drive.
Emphasis added).
The implied consent statute requires the Department to receive a sworn or certified report
before revoking a person' s driving privileges. Former RCW 46.20. 308. Under former RCW
46. 20. 308( 7), a sworn or certified officer' s report in compliance with former RCW
46. 20. 308( 6)( e) was a jurisdictional prerequisite to the Department' s power to revoke driving
privileges. Broom v. Dep 't of Licensing, 72 Wn. App. 498, 502, 865 P.2d 28 ( 1994); Martinez v.
Dept of Licensing, 70 Wn. App. 398, 401, 854 P.2d 43 ( 1993). But as Division One of this
court stated in Broom:
We hold that it is the existence of a certified report, not its contents, that confers
jurisdiction on [ the Department] and that the use of summary language in a report
is adequate, so long as it sets forth the information required by RCW 46. 20.308( 6).
In holding that the contents of a report are not the basis of [the Department' s]
jurisdiction, we do not suggest that a report containing a significant variation from
or an omission of the information required under RCW 46. 20. 308( 6) would be
adequate to confer jurisdiction. We hold only that the use of summary language
will not defeat jurisdiction where the summary language accurately conveys the
information required under the statute.
72 Wash. App. at 503 -04.4
Under former RCW 46.20. 308' s plain meaning, any officer " having reasonable grounds
to believe the person to have been driving ... under the influence" could direct the
administration of a breath test. Former RCW 46. 20. 308( 2). Providing the required warnings and
4 It is clear from Broom' s language that the court was discussing the certified report identified in
subsection ( e) of former RCW 46. 20. 308( 6).
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No. 45327 -4 -II
complying with a defendant' s refusal to take a breath test constituted " administration" of a breath
test, even where the person never actually took a breath test. See former RCW 46.20. 308( 2), ( 6).
Where such an officer had directed the administration of a breath test and the person
refused to submit to the breath test, that officer could provide the certified report required by
former RCW 46. 20. 308( 6)( e). Former RCW 46. 20. 308( 6)( e)( i) required the report to state
t ]hat the officer had reasonable grounds to believe the arrested person had been driving .. .
under the influence." ( Emphasis added). But former RCW 46. 20. 308 did not require the report
to explain those
. reasonable grounds, and we do not analyze the report' s substance to determine
the reasonableness of the officer' s grounds. See Broom, 72 Wash. App. at 503 -04.
Here, Trooper Rushton directed the administration of Watkins' s breath test and provided
a certified report to the Department. Trooper Rushton' s certified report met the requirements of
former RCW 46. 20. 308( 6)( e) by stating that there were reasonable grounds to believe Watkins
had been driving under the influence and that after receipt of the warnings required by the
implied consent statute, Watkins refused to submit to a breath test. Thus, we hold Trooper
Rushton' s report was sufficient to give the Department jurisdiction to revoke Watkins' s driving
privileges.
II. ADMISSIBILITY OF OFFICER SMITH' S UNCERTIFIED ARREST REPORT
The Department argues that Officer Smith' s uncertified arrest report was admissible at
Watkins' s hearing because it accompanied Trooper Rushton' s certified report. Watkins argues
that admission of Officer Smith' s uncertified arrest report violated former RCW 46. 20. 308 and
deprived him of due process. We agree with the Department.
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No. 45327 -4 -II
A. Former RCW 46.20. 308
The Department argues that Officer Smith' s uncertified arrest report was admissible
under former RCW 46. 20. 308. We agree.
Our Supreme Court has held:
At the hearing, the law enforcement officer' s sworn [ or certified] report is prima
facie evidence of a valid arrest and compliance with the requirements of the implied
consent statute. The sworn [ or certified] report and any other evidence
accompanying it, as well as certifications authorized by the criminal rules for courts
of limited jurisdiction, are admissible at the hearing without further evidentiary
foundation.
Cannon, 147 Wash. 2d at 51 ( emphasis added) ( internal citation omitted); see also Ingram v. Dep' t
of Licensing, 162 Wash. 2d 514, 522, 173 P.3d 259 ( 2007). WAC 308 - 103 - 120( 1) states:
The hearing officer shall rule on the admissibility and weight to be accorded to all
evidence submitted at the hearing. Evidence, including hearsay evidence, is
admissible if in the judgment of the hearing officer it is the kind of evidence on
which reasonably prudent persons are accustomed to rely on in the conduct of their
affairs.
See also Ingram, 162 Wash. 2d at 525. " Hearing officers are directed to liberally construe
admissibility to `` insure swift and certain punishment for those who drink and drive. "' 162
Wash. 2d at 523 ( quoting Vasquez, 148 Wash. 2d at 315).
Here, Officer Smith' s uncertified arrest report accompanied Trooper Rushton' s certified
report. Thus, Officer Smith' s uncertified arrest report was " admissible at the hearing without
further evidentiary foundation." Cannon, 147 Wash. 2d at 51. Although Officer Smith' s
uncertified arrest report constituted hearsay, this hearsay was admissible because reasonably
prudent persons are accustomed to rely on this kind of evidence in the conduct of their affairs.
See. State v. Patterson, 37 Wn. App. 275, 277 -78, 679 P.2d 416 ( 1984) ( when determining
whether to issue a warrant, " a magistrate may rely upon an affidavit or testimony of a police
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No. 45327 -4 -II
officer even though it relays hearsay information from other officers "). Thus, the hearing
examiner did not err by admitting Officer Smith' s uncertified arrest report.
B. Due Process
The Department argues that admitting Officer Smith' s uncertified arrest report did not
deprive Watkins of due process. We agree.
We review constitutional issues de novo. See Durland v. San Juan County, 182 Wash. 2d
55, 70, 340 P.3d 191 ( 2014). The State must provide due process when it deprives an individual
of life, liberty, or property. U. S. CONST. amend. XIV, § 1; WASH. CONST. art. I, § 3. Because
driving privileges are a protected property interest, revoking such privileges must comply with
due process. See Martin v. State Dep' t ofLicensing, 175 Wash. App. 9, 21, 306 P.3d 969 ( 2013).
Procedural due process requires providing the litigant with notice and an opportunity to
be heard, which requires providing the litigant an opportunity to confront witnesses against him
or her. 175 Wn. App. at 21. The State bears the burden of proving due process was provided.
175 Wash. App. at 21.
When we consider the specific dictates of due process we consider three factors from
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976). City ofBellevue
v. Lee, 166 Wash. 2d 581, 586, 210 P.3d 1011 ( 2009). The three Mathews factors are: ( 1) the
private interest that will be affected by the court' s action; ( 2) the risk of erroneously depriving a
person of that interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and ( 3) the State' s interest, including the function involved
and fiscal and administrative burdens that the additional or substitute procedural requirements
would entail. Mathews, 424 U.S. at 335.
No. 45327 -4 -II
Watkins supports his argument with Nirk v. Kent Civil Service Commission, which
concerned a civil service discharge hearing that resulted in a police officer' s permanent
discharge. 30 Wn. App. 214, 633 P.2d 118 ( 1981). The officer' s counsel requested that the
hearing examiner place the witnesses under oath, but the hearing examiner refused. 30 Wash. App.
at 214 -15. Division One of this court reversed the police officer' s discharge, holding witnesses
in civil service discharge hearings must be placed under oath. 30 Wash. App. at 217 -19, 221.
While legislative intent provided the primary justification for the court' s holding, it also held that
due process required witnesses to be under oath in civil service discharge proceedings:
Witness] statements should be under oath even when the testimony is written. Such
a requirement poses a minimal inconvenience to the administrative body and is
consistent with the informality of the hearing.
W] ithout sworn testimony a reviewing court is unable to review the Commission' s
decision on appeal. In reviewing an adjudicatory administrative decision, a court
must presume that the evidence presented is truthful.... In the case of unsworn
testimony, however, the evidence cannot be given the traditional presumption of
truthfulness and we are, therefore, unable to perform our appellate review function.
C] onsidering the importance of the oath, the significant interests at stake in a
discharge hearing, the legislative provision authorizing the administration of oaths,
and the minimal inconvenience that such a requirement would cause, due process
requires that witnesses be sworn at a civil service discharge hearing.
30 Wn. App. at 219 -21 ( internal citations omitted). We hold that considering the Mathews
factors, this case is distinguishable from Nirk.
First, the private interest affected here was driving privileges. While driving privileges
are a protected property interest, they are not equal to an interest in employment because
depriving an individual of employment often "`` call[ s] into question [ the litigant' s] good name,
honor or integrity. ' See 30 Wash. App. at 216 ( quoting State v. Civil Serv. Comm' n, 25 Wash. App.
174, 182, 605 P.2d 796 ( 1980)).
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No. 45327 -4 -II
Second, both the risk of erroneously depriving an individual of driving privileges by
admitting an uncertified arrest report whose accuracy was certified by another officer and the
probable value of excluding such an uncertified arrest report are insignificant. Where one
officer' s certified report declared under penalty of perjury that an uncertified arrest report was
accurate, that uncertified arrest report' s accuracy was supported by a certified report, unlike the
witnesses in Nirk. Furthermore, in hearings to revoke driving privileges, the defendant has the
right to confront officers providing evidence against him by subpoenaing the officer to testify
under oath at the hearing. See Martin, 175 Wash. App. at 21 -22; Weekly v. Dep 't ofLicensing, 108
Wn. App. 218, 225, 27 P.3d 1272 ( 2001); WAC 308 -103 - 140. Thus, the risk of erroneously
depriving an individual of driving privileges by admitting an uncertified arrest report whose
accuracy was certified by another officer, and the probable value of excluding such an
uncertified arrest report, are insignificant.
Third, considering the State' s interest, Watkins' s argument asks us to require each
witness who provides a statement accompanying an officer' s certified report to certify his or her
own statement. This would place an additional administrative burden on the State, by requiring
the State to obtain a certification from each witness whose statement accompanied an officer' s
certified report. This administrative burden could compromise an integral function of the driving
privileges revocation procedure: rapidly removing intoxicated drivers from the road. See
Vasquez, 148 Wash. 2d at 315. Thus, the third factor leans in favor of the Department. Applying
the Mathews factors, we hold due process allowed admission of Officer Smith' s uncertified
report in Watkins' s hearing.
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No. 45327 -4 -II
Because Trooper Rushton' s report was sufficient to give the Department jurisdiction to
revoke Watkins' s driving privileges and Officer Smith' s uncertified arrest report was admissible
at Watkins' s revocation hearing, we affirm the hearing examiner' s ruling sustaining the
revocation of Watkins' s driving privileges, which effectively reverses the superior court.
We concur:
1
Bj'rger,R A.C. J.
Sutton,
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