Alforde v. Department of Licensing

Kurtz, J.

(dissenting) — I respectfully dissent and I cannot do better than to adopt Judge Cooper’s memorandum decision, to-wit:

PROCEEDINGS

Mr. Alforde appeals the decision of the hearing examiner of the Department of Licensing who sustained the Department of Licensing order suspending his privilege to drive pursuant to RCW 46.20.308. Oral argument on appeal was conducted on October 29, 2001.

STANDARD OF REVIEW

The appeal is governed by RCW 46.20.308(9), which requires this court to review the action of the Department of Licensing in the same manner as an appeal from a decision of a court of limited jurisdiction. The standard of review utilized by this court, then, is that set forth in RALJ 9.1, to determine whether the administrative hearing officer committed errors of law. Moreover, in reviewing the administrative law officer’s decision for errors of law, this court must accept those factual determinations supported by substantial evidence in the record which were found by the administrative hearing officer or which may reasonably be inferred from the judgment of the administrative hearing officer. RALJ 9.1(b). This court cannot substitute its judgment for that of the administrative hearing officer or weigh evidence or assess the credibility of witnesses. Davis v. Department of Labor & Industries[,] 94 Wn.2d 119, 124[, 615 P.2d 1279] (1980); Walk v. Department of Licensing, 95 Wn. App. 653, 656 [, 976 P.2d 185] (1999).

*585DISCUSSION

1. Facts. The majority of the underlying facts are undisputed by the parties.1 On or about 2:11 a.m. on Saturday, November 4, 2000 Officer Andrew Hall of the Ellensburg Police Department arrested appellant Alforde after Officer Hall observed Mr. Alforde’s vehicle roll through a stop sign as it was proceeding north on Pearl Street approaching and going through the intersection at 5th Street. Upon contacting Mr. Alforde Officer Hall noted Mr. Alforde had an odor of intoxicants about his person and breath and that his eyes were red and watery. Upon inquiry Mr. Alforde admitted he had consumed one beer. According to Officer Hall, Mr. Alforde swayed and displayed an inability to balance, his coordination was poor, and his speech was slightly slurred. Officer Hall opined Mr. Alforde’s degree of impairment due to alcohol/drug use was obvious.

Upon being taken to the police station Mr. Alforde was advised of his implied consent rights and warnings and elected to take the breath test. Officer Hall administered the breath test after first checking Mr. Alforde’s mouth at least 15 minutes prior to the administration of the breath test and found it free of foreign materials. Officer Hall asserted Mr. Alforde did not vomit or have anything to eat, drink or smoke for at least 15 minutes prior [to] the administration of the breath test. Mr. Alforde thereafter gave two valid breath samples with readings of .107 and .110.

Officer Hall completed the Department of Licensing report of breath/blood test for alcohol2 and submitted [it] to the Department of Licensing. The Department of Licensing thereafter order [ed] the suspension of Mr. Alforde’s driving privileges3 for 90 days, effective January 4, 2001, and advised Mr. Alforde of his right to appeal the suspension. Mr. Alforde requested an administrative hearing and the Department of Licensing set an administrative hearing before hearing officer Mullenix to take place on January 2, 2001. On January 2, 2001 hearings officer *586Robert Mullenix conducted an administrative hearing by telephone. At the hearing appellant Alforde, through his attorney, agreed to the admission of Exhibit 1, the report of breath/blood test for alcohol and objected [to] the admission of Exhibit 2 because it lacked the certification required by RCW 9A.72.085.4 Mr. Alforde did not testify nor did he present any evidence. After considering the records and arguments, hearing officer Mullenix affirmed the Department of Licensing’s suspension of Mr. Alforde’s driving privilege and entered findings of fact and conclusions of law and an order sustaining the suspension of Mr. Alforde’s driving privilege. From those findings, conclusions and order Mr. Alforde appeals.

2. Law. If a license is revoked or suspended based upon the administration of a breath test indicating the alcohol concentration of the person’s breath or blood is 0.08 or more, in the case of a person age 21 or over, that person has the right to request an administrative hearing regarding the revocation. The scope of this hearing includes: (1) 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 in this state while under the influence of an intoxicating liquor; (2) whether the person was placed under arrest; and (3) when the tests were administered, whether the applicable requirements of RCW 46.20.308 were satisfied before the administration of the tests, whether the person submitted to the tests, and whether the tests indicated that the alcohol concentration of the person’s breath was 0.08 or more if the person was age 21 or over at the time of arrest.5 The result of the administrative hearing is reviewable in superior court, based on the administrative record.6

Mr. Alforde’s argument concerning Exhibit 2 and the lack of the appropriate certifications required by RCW 9A.72.085 goes *587to the innate fairness of the administrative proceeding. The court construes his argument as a due process argument. Revocation of the driver’s license for a statutorily defined cause implicates protectable property interest that must comply with due process. Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Lytle v. Department of Licensing, 94 Wn. App. 357, 361 [, 971 P.2d 969] (1999). The state has the burden of proving the revocation of the person’s license complied with due process. State v. Storhoff, 133 Wn.2d 523, 527[, 946 P.2d 783] (1997).

Legislation effective September 1, 19957 altered the revocation hearing process substantially. Since September 1,1995 the sworn report or report under declaration authorized by RCW 9A.72.085 submitted by the law enforcement officer 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 of intoxicating liquor or drugs, or both.8 The sworn report referred to in RCW 46.20.308 refers to the report required by RCW 46.20.308(6)(e).9 The sworn report of a breath/blood test is a jurisdictional prerequisite to the Department of Licensing’s power to revoke the driver’s license. Broom v. Department of Licensing, 72 Wn. App. 498, 502[, 865 P.2d 28] (1994). Before September 1, 1995, however, the use of the report was limited to establishing DOL’s jurisdiction and could not be offered into evidence to prove substantive facts. Broom, supra. Borger v. Department of Licensing, 51 Wn. App. 942, 945, [756 P.2d 153,] review denied, 111 Wn.2d 1016 (1988). The sworn report had no relevance at all in the superior court’s then de novo review of the revocation. Lewis v. Department of Motor *588Vehicles, 81 Wn.2d 664, 667[, 504 P.2d 298] (1972). All issues contained in the report, including the issue of whether the driver was given an appropriate implied consent warning, had to be proved by the Department of Licensing whenever an administrative hearing was requested. Broom, supra. Now, in administrative hearings conducted involving cases arising subsequent to September 1, 1995, the sworn report constitutes prima facie evidence on the first prong of the elements DOL needs to prove, i.e. that the officer had reasonable grounds to believe the person had been driving under the influence. On that prong only the burden shifts to the licensee to refute.

3. Decision. It is noted in Lytle v. Department of Licensing, supra at 362 the Court of Appeals stated in its set of facts that the sworn report and the police report constituted prima facie evidence the implied consent statute was complied with by the officers. With all due respect to Division III, this court reads RCW 46.20.308 as declaring that the sworn report only 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 of intoxicating liquor and/or drugs . . ., not that the sworn report constituted prima facie evidence of the other issues before the administrative hearing officer, to wit whether the person was placed under arrest and whether the person had a test result exceeding the legal limit prohibited by statute. The second and third prongs still needed to be proved by the Department of Licensing by competent evidence, including any other evidence accompanying the sworn report of the officer submitted to the Department of Licensing as required by RCW 46.20.308(6)(e), in other words the police reports.

The state Department of Licensing argues it has met its burden through the admission of Exhibit 2 and that the cover sheet entitled Certification/Declaration sent out by the Department of Licensing to the arresting officer for the purpose of the arresting officer signing under penalty of perjury and returning with all of his attached reports and documents is of no significance as it is not required by statute.10 Appellant Alforde argues to the contrary and asserts that most of the documents contained in Exhibit 2, pages 2 to 28, are not self-certifying or *589authenticating. In reviewing the entire record, including Exhibit 2, there is no reference anywhere whatsoever that Exhibit 2 accompanied Exhibit 1 or that Exhibit 1 referenced Exhibit 2. Moreover, there is no indication Officer Hall submitted Exhibit 2 when he mailed Exhibit 1 to the Deparmtent [sic] of Licensing nor is there any indication the documents set forth in Exhibit 2 are in any way tied to Exhibit 1. Finally, it is noted most of the documents contained in Exhibit 2, including pages 1 through 15 and 22 through 28 don’t contain a certificate. It is noted pages 16 through 21 do have the RCW 9A.72.085 declarations on them.

As Judge Schultheis noted in Lytle, supra at 362 the procedural safeguards eliminated by the removal of de novo review is a policy issue for the legislature to address if it is so inclined. The statute says what is [sic] says and this court must enforce its plain meaning regardless of the public policy misgivings this court may have. If the statute produces unintended or unwanted consequences, the legislature must attend [to] it. Here, the court concludes the Department of Licensing has not afforded Mr. Alforde due process under these particular facts because it has not complied with RCW 46.20.308 insofar as the sworn report required by RCW 46.20.308(6)(e) did not have any other evidence accompanying the report. The last paragraph of RCW 46.20.308 allows the Department of Licensing to prove its case, including prongs two and three by reports if they accompany the sworn report required by RCW 46.20.308(6)(e). Allowing the Department of Licensing to submit uncertified documents in hodgepodge, loose leaf fashion without any semblance of order and without any attempt to comply with the statute authorizing their admission, flies in the face of due process and certainly does not constitute a mere technical deficiency like the one allowed in Veranth v. Department of Licensing, 91 Wn. App. 339 [, 959 P.2d 128] (1998). The Department had the opportunity to put a concise packet together that would prove all of the requirements of prongs two and three in an orderly fashion in a report and it did not do so.

CONCLUSION

Based on the foregoing, the decision of the hearing examiner dated January 3, 2001 affirming the Department of Licensing’s *590action suspending Mr. Alforde’s privilege to drive be and is hereby reversed. This matter is remanded to the Department of Licensing with instructions to reinstate Mr. Alforde’s license.

Clerk’s Papers at 88-93. I agree and so would affirm the trial court.

Review denied at 150 Wn.2d 1004 (2003).

Appellant does contend findings of face [sic] 2 through 11 were not supported by substantial evidence because the hearings officer committed errors of law considering the documents set forth in Exhibit 2.

Exhibit 1 to the administrative record.

See record on appeal 35.

In reviewing the transcript of the hearing it appears the attorney for Mr. Alforde agreed to the admission of Exhibit 2 for the purpose of allowing the hearings examiner to give weight and credibility to the documents as long as he could raise the issues concerning the certification or lack thereof. The court will treat appellant’s objection to Exhibit 2 as an objection for all purposes, including admissibility, since appellant’s attorney argued the documents lacked certification and should not therefore be considered for any reason.

RCW 46.20.308(8).

RCW 4[6] .20.308(9).

When RCW 46.20.308 was amended by Laws of 1995, Chapter 332 [section 1].

See RCW 46.20.308(8).

The court makes that assessment in comparing the language of the last long sentence of the first paragraph of RCW 46.20.308(8) with RCW 46.20.308(6)(e)(i). The language is almost identical. Moreover, the reference to sworn report in the second paragraph of RCW 46.20.308(8) must also refer to the report of breath/blood test described and required in RCW 46.20.308(6)(e)(i), not the police reports that may otherwise be certified under penalty of perjury, because that reference in the second paragraph of RCW 46.20.308 [(8)] also references other evidence accompanying the report as being admissible without further evidentiary foundation. Likewise, the certifications authorized by criminal rules for courts of limited jurisdictions shall be admissible without further evidentiary foundation. See CrRLJ 6.13.

See record on appeal, page 2 of Exhibit 2.