Ingram v. Department of Licensing
| Decision Date | 13 December 2007 |
| Docket Number | No. 80149-5.,80149-5. |
| Citation | 173 P.3d 259,162 Wn.2d 514 |
| Parties | Paul Douglas INGRAM, Respondent, v. The DEPARTMENT OF LICENSING, Petitioner. Bryan Lindley Delong, Respondent, v. The Department of Licensing, Petitioner. |
| Court | Washington Supreme Court |
Charnelle Marie Bjelkengren, WA State Atty General's Office, Spokane, WA, Jay Douglas Geck, Office of the Attorney General, Olympia, WA, for Petitioner.
Kenneth Duncan Beckley, Attorney at Law, Ellensburg, WA, for Respondent.
¶ 1 Two men challenge the 90-day suspensions of their driver's licenses under the State's implied consent law, RCW 46.20.308. They contend that their respective hearing officers should not have admitted a form declaration by the state toxicologist. We reject their arguments, reverse the trial court, and reinstate their 90-day suspensions.
¶ 2 For decades, the Washington State Legislature has engaged in an ever-expanding effort to eliminate or reduce the carnage intoxicated drivers wreak upon the people and highways of the State. This effort began in 1927, when Washington first prohibited driving on the State's roads while under the influence of alcohol or drugs. LAWS OF 1927, ch. 309, § 51. Alcohol testing was first introduced in 1949. LAWS OF 1949, ch. 196, § 119. In 1969, a popular initiative passed declaring that by driving on Washington roads, drivers gave implied consent to alcohol breath tests. LAWS OF 1969, ch. 1, § 1. Some years later, 1986 brought a per se intoxication standard based on breath instead of blood alcohol content. LAWS OF 1986, ch. 153, §§ 2-5. Recent times have seen amendments to drunk driving laws almost yearly. See, e.g., LAWS OF 1999, ch. 331, § 2; LAWS OF 1998, ch. 213, § 1; LAWS OF 1995, ch. 332, § 1; LAWS OF 1994, ch. 275, § 13; LAWS OF 1989, ch. 337, § 8. The 2004 legislature continued the tradition, stating:
The legislature finds that previous attempts to curtail the incidence of driving while intoxicated have been inadequate. The legislature further finds that property loss, injury, and death caused by drinking drivers continue at unacceptable levels. This act is intended to convey the seriousness with which the legislature views this problem. To that end the legislature seeks to ensure swift and certain consequences for those who drink and drive.
¶ 3 For the sake of clarity, we first note that the implied consent proceedings before us are not criminal driving while under the influence proceedings. Rather, we are asked to review civil license suspension proceedings. These have a lower burden of proof and run on a parallel track to any criminal proceedings. See Thompson v Dep't of Licensing, 138 Wash.2d 783, 796-97, 982 P.2d 601 (1999). Under this civil statutory scheme, a person who operates a vehicle in Washington has by law given "implied consent" to a test of the person's breath or blood for alcohol upon a showing that the arresting officer has reasonable grounds to believe that the person was driving or in physical control of the vehicle while intoxicated.1 RCW 46.20.308(1). If the person submits to a breath or blood test for alcohol and the test result is over the legal limit, the person's license to drive will be suspended for 90 days.2 RCW 46.20.3101(2)(a).
¶ 4 A person who has failed a breath or blood test may challenge the suspension by requesting an administrative hearing. RCW 46.20.308(8). At the hearing, the sworn report of the arresting officer and anything that accompanies the report is deemed admissible without further evidentiary foundation, and the officer's sworn report is prima facie evidence that the officer had reasonable grounds to believe the person was operating or in physical control of the vehicle while intoxicated. Id.
¶ 5 With this background, we will examine the facts of the cases before us. At issue in these cases is the admissibility at implied consent hearings of declarations of the state toxicologist concerning thermometers of the breath testing machines.
¶ 6 In January 2005, an Ellensburg police officer saw Bryan Delong's car drifting from side to side within his lane and then crossing the center line. In May 2005, a Kittitas County sheriff's deputy followed Paul Ingram's car as it crossed over the center line and onto the shoulder at roughly 70 miles per hour, well over the posted speed limit. In each case, the driver was stopped and given a breath test. Delong and Ingram registered breath alcohol readings of .190 and .125 respectively, both well over the legal limit. Pursuant to the implied consent law, each man was sent a notice advising him that his license would be suspended for 90 days unless he requested a hearing. See RCW 46.20.308(8).
¶ 7 Both men retained the same lawyer, requested a hearing, and appeared at their hearings telephonically. At the hearings, the respective hearing officers considered the law enforcement officers' sworn reports as provided by RCW 46.20.308(8). In each case, the hearing officer considered a declaration submitted by the state toxicologist. The declaration appears to be a blanket declaration asserting that all thermometers in the breath testing machines used by the Washington State are "approved" thermometers.3 The state toxicologist's declaration is readily available on the Washington State Patrol web site. In each case, the declaration of the state toxicologist was provided to Delong and Ingram and placed into their hearing files before the hearing, but the declarations did not accompany the officers' sworn reports.
¶ 8 Delong and Ingram objected to the state toxicologist's declaration, arguing that it was not specifically admissible under any of the relevant statutes and regulations. Each hearing officer concluded the declaration was admissible because it was relevant, it was a department record, it was signed under penalty of perjury, and it was given to both Delong and Ingram before the hearing and generally available to the public on the Internet. As authority, the hearing officers cited RCW 46.20.332, dictating that the department "shall consider its records," and former WAC 308-103-100, -120, -150(9) (2002), authorizing the hearing officer to consider relevant evidence received before the end of the hearing.
¶ 9 Delong and Ingram were unsuccessful at their implied consent hearings and appealed to the superior court. The superior court suppressed both breath tests and reversed the license suspensions. The superior court also awarded Ingram $600 and Delong $350.4 In Ingram's appeal, the superior court declared the matter had already been resolved in a recent similar case, Bell v. Dep't of Licensing, No. 05-2-00033-6 (Kittitas County Super. Ct. Sept. 29, 2005). In Bell, the same judge reversed a license suspension because the state toxicologist's declaration was not specifically admissible under the relevant statutes and regulations.5 The Department of Licensing appealed the rulings of the Kittitas County Superior Court, and we accepted certification from the Court of Appeals and granted review.
¶ 10 Our review of the meaning of statutes and regulations governing administrative proceedings is de novo, with appropriate deference to the department. City of Seattle v. Clark-Munoz, 152 Wash.2d 39, 43, 93 P.3d 141 (2004); Federated Am. Ins. Co. v. Marquardt, 108 Wash.2d 651, 656, 741 P.2d 18 (1987); RCW 46.20.308(9). Whether the law was correctly applied to the facts is also a question of law we review de novo. See Silverstreak, Inc. v. Dep't of Labor & Indus., 159 Wash.2d 868, 880, 154 P.3d 891 (2007) (). We uphold factual findings if supported by substantial evidence. See RCW 46.20.308(9); see also Alforde v. Dep't of Licensing, 115 Wash.App. 576, 579, 63 P.3d 170 (2003) (citing Dep't of Licensing v. Grewal, 108 Wash.App. 815, 819, 33 P.3d 94 (2001)).
¶ 11 Under the implied consent law, Washington drivers are deemed to have consented to a blood or breath test if arrested for suspicion of driving under the influence. RCW 46.20.308. If the test shows an alcohol concentration above the legal limit of .08 for an adult, the driver's license will be suspended for at least 90 days. RCW 46.20.3101(2)(a). The driver may request an administrative hearing to determine, among other things, whether the test was valid. RCW 46.20.308(8).
¶ 12 The department has rule-making authority for these proceedings and the legislature has largely exempted the department from the Administrative Procedure Act. RCW 46.01.110; RCW 34.05.030(2)(b). But certain evidentiary rules are prescribed by statute. For example, breath test results are admissible at the hearing only if, among other requirements, the department presents prima facie evidence that the simulator (a component of the breath test device) contained a thermometer approved by the state toxicologist. RCW 46.61.506(4)(a). The sworn report of the police officer, along with any accompanying evidence, is admissible without further evidentiary foundation. RCW 46.20.308(8). Certifications made under the criminal rules for courts of limited jurisdiction are also admissible without further evidentiary foundation. Id. Additionally, in a formal hearing, the department "shall consider its records." RCW 46.20.332.
¶ 13 Within these statutory constraints, the Department of Licensing has authority to promulgate rules for implied consent hearings. RCW 46.01.110. The hearing officer has the power to admit and weigh evidence under the department's rules. Former WAC 308-103-100, -120. The rules give the hearing officer the power to receive relevant evidence offered before the end of the hearing. Former WAC 308-103-120, -150(9). Hearing officers are directed to liberally construe admissibility to "`insure swift and certain punishment for those who drink and drive.'" State v. Vasquez, 148...
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