DUI LICENSE SUSPENSION – A 25 YEAR PERSPECTIVE by Jon Scott Fox   May 2009

I've been practicing DUI defense in Washington state since 1984. In the past 25 years, I have seen dramatic changes to our DUI laws but probably the most dramatic and distressing changes have occurred in the context of DUI license suspension procedures. Over the years, like water dripping against a rock, a driver's right to due process in connection with his or her privilege to drive has been eroded.

For as long as I can recall, Washington State has had "administrative suspension/revocation" of a driver's license in one form or another. Initially, it was only a driver who after being arrested for DUI, refused to take a breath test, would face "automatic" suspension of the license. Here's how that system worked: as today, the driver was required to make a timely request for a hearing to the Department of Licensing. There was no fee associated with this request for a hearing. The hearing will be held in person before a hearing examiner at the Department of Licensing. The driver and his or her attorney would appear at the Department of Licensing to give testimony, and the arresting officer was also required to appear and give testimony. This hearing had the look and feel of an actual "due process" court hearing and most drivers who went through this experience at least felt that they had been given an opportunity to fight to save the license. In the event that the Department of Licensing hearing examiner ruled against the driver, an appeal to the Superior Court could be filed. The filing of this appeal would automatically stop or "stay" the license suspension while the whole matter was taken to the Superior Court for a "trial de novo." In the Superior Court, the driver was entitled to a jury trial and it was the jury of the driver's peers who would then determine whether the driver's license would be revoked or not. This was a good system in that twelve citizens from the community were called upon to decide whether the Department of Licensing's decision revoke the driver's license because of a DUI arrest was justified. It was worth while having a jury trial on the issue of suspension or revocation of the driver's license, since at that time it was recognized that although it is a "privilege" to drive, in many cases it is a necessity. Most drivers who went through this system felt, win or lose, that at least they had been given a good opportunity to secure justice regarding their license, and that the entire process was fair.

Then, over the years, it was decided by the legislature that the system should be "streamlined." The need for "streamlining" arose because the legislature also decided that it would add a new class of drivers whose license would be suspended pursuant to the DOL administrative suspension process. Now, a driver arrested for DUI who took a breath test with a result of .08 or higher, also faces administrative suspension or revocation of the license. This created an increased number of cases that would proceed through the Department of Licensing administrative hearing process. Therefore, in order to streamline the process, several critical changes occurred. The first was that there would be no more "live and in person" hearings, but the license suspension hearings would only occur by telephone. Today, only a showing of "special circumstances" will entitle a driver to an in-person hearing at the Department of Licensing. The driver facing DUI administrative license suspension or revocation today has a "hearing" that is conducted only by telephone. Nor is the DUI arresting officer required to attend. Instead, the arresting officer's testimony is presented by way of the DUI officer sending the police report to the Department of Licensing hearing examiner. The police report becomes the officer's testimony if the officer has signed a statement swearing that the police report is true and correct. Statistics reveal that, at such a hearing, the credibility of a police officer is almost always judged by the Department of Licensing to be superior to the credibility of the driver who was arrested for DUI despite the fact that the officer gives no live testimony, and the driver has given sworn live testimony.

The current system does permit the officer to be subpoenaed for testimony but this must be done at the expense of the driver and the driver's attorney must see to it that the subpoena is served upon the DUI arresting officer. Still, there is no direct "right of confrontation" of the accuser because the officer's testimony is taken by telephone. It is not uncommon for the DUI arresting officer to give testimony by telephone from his car or even, from his back patio, at this critical hearing to determine whether a driver's license will be suspended or revoked. A driver who loses his or her license pursuant to such a hearing does not feel that there was much due process afforded.

The current system of DUI driver's license suspension hearings also does not include the type of review that previously existed. Whereas under previous law, if the Department of Licensing suspended a driver's license after a DUI arrest, the driver would be entitled to have a jury of his or her peers review the matter in the Superior Court, the right to a jury trial no longer exists in an appeal from a Department of Licensing DUI suspension proceeding. The right to a jury trial has been replaced by an "on the record" review by a Superior Court judge. This means that whatever "record" was created in the telephone hearing that was held regarding the DUI license suspension proceedings will be the only evidence that the Superior Court judge can consider in connection with the appeal. Whereas under previous law the driver was entitled to the benefit of a Superior Court jury trial with all of the evidence rules applying, that right has been entirely eliminated under current law. In addition, because it is a judicial review of the record created by an inferior tribunal, the Superior Court judge must engage in an evidentiary presumption that favors the Department of Licensing. In addition, the filing of an appeal from a Department of Licensing DUI suspension proceeding does not "stay" the license suspension. The DUI administrative license suspension remains in place unless the driver is able to persuade a Superior Court judge that (1) the driver will suffer irreparable harm if the stay is not granted and (2) there is a likelihood that the driver will prevail on appeal. This means that in many cases, even if it is ultimately ruled that the Department of Licensing was legally wrong to suspend or revoke the license, that vindication will be of no assistance to the driver who has already suffered the suspension.

Stripping the Due Process out of the Department of Licensing DUI suspension system raised no public outcry because it only affected people who have been arrested for DUI. However, the public should be concerned whenever the legislature decides that a process affecting an important right or privilege should be "streamlined" since this will almost always involve the loss of important procedural rights.

It is undeniable that the legislative changes to the Department of Licensing DUI suspension process have resulted in fewer protections for the driver, and therefore the DUI defense attorney must work even harder to bring a semblance of due process and fairness to each and every hearing conducted wherein the privilege to drive is in jeopardy. Our firm, Fox Bowman Duarte, has reacted to the changes in these laws by dedicating a section of our firm solely to the litigation of Department of Licensing suspension hearings and appeals. To my knowledge, we are the only DUI defense firm in Washington State with such a section. Attorney Diana Lundin of our firm provides the highest quality of advocacy regarding Department of Licensing hearings and appeals, and works in conjunction with each partner of the firm regarding driver license issues.

Although the changes to the justice system as applied to driver's licenses over the past 25 years are disturbing, an important purpose is served by reviewing this history – the conclusion that the DUI defense attorney must fight even harder on behalf of the client accused of DUI.