Washington State considers driving a privilege, not a right. Every licensed driver from this state must agree to submit to a chemical test when placed under arrest for DUI, Physical Control, or Minor DUI. Every state in the country has an implied consent law; thus, you have automatically consented to taking such a test.
Washington's Implied Consent Law (RCW 46.20.308) requires any driver arrested for DUI, Physical Control, or Minor DUI to submit to a breath or blood test. Refusal to submit to a chemical test will result in a mandatory administrative license revocation by the DOL for at least one year. Should a person submit to a test and are over the legal limit (.02 under age 21, .08 over 21), they face an administrative license suspension by the DOL for 90 days or more.
The administrative action by the DOL is completely separate from the criminal case. It is considered "civil" in nature, while the court case is a "criminal" matter. Even if the court dismisses the criminal charge for DUI, or the charges are reduced to a lesser offense, a driver can still face an administrative suspension or revocation based on the implied consent law. Thus, you may "win" your DOL hearing to preserve their license and still lose it if convicted of a DUI. Or vice versa. Both matters must be handled separately from each other.
Immediate Steps After a Washington DUI Arrest
After a DUI arrest, the officer will usually take the driver to the police station for a breath test. Should the driver either blow over the limit, or refuse to take it, the officer will provide them with a hearing request form.
Drivers can still drive legally, but the DOL will suspend or revoke their license on the 61st day following the arrest. This is automatic, unless the person requests an administrative hearing to dispute the administrative suspension or revocation.
A driver may request via mail or online an administrative hearing within 20 days following the arrest to contest the administrative suspension. Failure to do so (along with paying the mandatory $375 hearing fee) within 20 days means they automatically face license suspension or revocation on the 61st day following arrest. For a list containing the length of administrative suspension or revocation following a DUI or Physical Control arrest, click here.
Any driver who has been arrested for a DUI should take immediate actions and contact an experienced DUI attorney to discuss their case and how to request the administrative hearing.
The Administrative Hearing In Washington DUI Cases
Within a few weeks of requesting a hearing, a driver will receive notification of a date and time. Should an attorney be listed on the request, he or she will also receive the hearing date and time, as well as a copy of the arresting officer's police report (known as Exhibit 1). If a driver does not list an attorney on the hearing request, they will be mailed the police report directly.
A judge does not preside over these administrative hearings in a court of law. Instead, a "hearing examiner" conducts them over the telephone. The hearing examiner is an employee of the Department of Licensing and essentially serve as the judge, jury, and prosecutor all in one. A DOL employee randomly assigns hearing examiners to each case and the examiners can be from anywhere in Washington.
The administrative hearing tries to resolve four issues:
- Was it a lawful arrest?
- Did the arresting officer have reasonable grounds to believe the driver was DUI (or Physical Control or Minor DUI)?
- Was the driver properly advised of his rights and warnings pursuant to the implied consent law?
- Did the driver's breath or blood indicate a reading over the legal limit or did the driver refuse the chemical test?
These four issues are the only issues the hearing will resolve. Also, because the hearings are considered civil in nature, unlike criminal courts where the burden of proof uses fairly tough criteria, this is merely a preponderance of the evidence.
The hearing ultimately decides if it's evident that the four issues above have been proven (50.1% v. 49.9%) to be true.
Unless the driver requests, the arresting officer does not have to give testimony at the administrative hearing. The driver can give testimony, but without legal representation (especially by a seasoned DUI attorney) it is unwise to consider making such major steps singlehandedly. Drivers without counsel can be their own worst enemy. The driver, in fact, isn't even required to attend and the attorney may handle this alone.
In many cases, it's normal for the examiner to provide no decisions at the conclusion of the hearing. Instead, they take the matter "under advisement" and issue a written "findings of fact and conclusions of law." Some hearing examiners issue decisions within a few days to a week after the hearing. Others take upwards of two to three months after the hearing ends to issue their decision. While the case is under advisement, the driver can still drive legally (unless there is another matter regarding license suspension or revocation).
NOTE: This hearing is all-or-nothing. Were the four legal issues above met by a preponderance of the evidence? If yes, the hearing examiner "sustains" the DOL's action and the driver loses their driving privilege. If the four issues were not met, the hearing examiner "dismisses" the DOL's action and the driver can have their privileges reinstated.
An Uphill Battle To Prevail At the DOL Hearing
Drivers who request these hearings face a severe, uphill battle to preserve their license. The sad truth is many hearing examiners are severely biased, and while they may claim to be an impartial "fact-finder," they act as advocates for the police officer. Decisions in favor of drivers are closely scrutinized.
Statistically, the average statewide success rate for drivers who request an administrative hearing is approximately 20%. I have regularly handles administrative hearings for people involved in a Seattle, Kirkland, Bellevue or Redmond DUI case and have a track record substantially better than the statewide average. I'm available 7 days a week and may be reached directly at 425-284-2000.