State v. Dolson
| Decision Date | 04 May 1998 |
| Docket Number | No. 39630-7-I,39630-7-I |
| Citation | 957 P.2d 243,91 Wn.App. 187 |
| Parties | STATE of Washington, Petitioner, v. Timothy G. DOLSON, Respondent. |
| Court | Washington Court of Appeals |
Eric J. Richey, Deputy Prosecuting Attorney, Whatcom County Courthouse, Bellingham, for Appellant.
Lee Grochmal, Whatcom County Public Defender, Bellingham, for Respondent.
We granted discretionary review to decide whether the superior court erred in reversing Timothy Dolson's conviction for first degree driving while license suspended. Reversal was premised on the theory that the Department of Licensing sent Dolson's notice of license revocation to the wrong address. The notice was sent to an address that Dolson had recently provided to an arresting officer, rather than to an address formally provided by Dolson under RCW 46.20.205. Dolson bears the burden of keeping his address current with the Department, and there is no evidence that he provided the State with any other address that would have been more likely to effectuate notice. Sending notice to Dolson's most recently known address did not constitute a due process violation nor render the notice ineffective. Further, Dolson has demonstrated no prejudice whatsoever, and in any event, Dolson had constructive notice of his status as a habitual traffic offender. His conviction is reinstated and the case is remanded for sentencing.
Dolson has a long history of driving troubles. He received his license in 1982. In 1986, he "lost" his license when the Department of Licensing "took it" after a DUI conviction. In 1989, his license was revoked for refusing a breath test. His license also formally expired in 1989 and he never received a new one.
In May 1990, the Department revoked Dolson's driver's license because he was a habitual traffic offender as defined by RCW 46.65.020 and RCW 46.20.342. The Department sent him a revocation notice by certified mail, using an address he provided in September 1989 when cited for driving with a revoked license. The notice was returned unclaimed.
Dolson kept driving, which inevitably led to further problems. From 1992 to 1995, he was convicted four times for driving while license suspended/revoked. Each conviction required an additional year of license revocation. See RCW 46.20.342(2)(a).
On June 19, 1995, the Department sent Dolson a letter informing him that his license was suspended for an additional year because of a recent conviction for driving while license suspended in the first degree. The letter informed Dolson his license would remain invalid until he took action to reinstate it. See RCW 46.65.070, .080. He took no such action.
Dolson was again cited for driving while license suspended on July 31, 1996, which led to another first degree conviction. Dolson appealed, and the superior court reversed, on the theory that the original 1990 revocation letter was mailed to the wrong address, depriving Dolson of due process. We granted discretionary review.
The sole question is whether Dolson's original license revocation offended due process guaranties. The State bears the burden of proving the revocation constitutional. State v. Storhoff, 133 Wash.2d 523, 527, 946 P.2d 783 (1997). When the alleged due process violation does not on its face demonstrate prejudice, the defendant must at least make an allegation of prejudice. See Storhoff, 133 Wash.2d at 527-28, 532, 946 P.2d 783.
Under the Habitual Traffic Offender Act, license revocation is mandatory when a person is convicted of three occurrences of driving with a suspended or revoked license within a five-year period. RCW 46.65.020(1)(c); State v. Vahl, 56 Wash.App. 603, 609, 784 P.2d 1280, review denied, 114 Wash.2d 1021, 792 P.2d 533 (1990). Due process requires that the licensee be afforded notice and an opportunity to be heard. See, e.g., Storhoff, 133 Wash.2d at 527, 946 P.2d 783; RCW 46.65.065; Bell v. Burson, 402 U.S. 535, 539-40, 91 S.Ct. 1586, 1589-90, 29 L.Ed.2d 90 (1971). The notice must be reasonably calculated to inform the affected party of the pending action and of the opportunity to object. See, e.g., State v. Baker, 49 Wash.App. 778, 781, 745 P.2d 1335 (1987) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
The Department of Licensing is required to provide notice of revocation and the right to a formal hearing by mailing a letter to the licensee's "address of record as maintained by the department." RCW 46.65.065. In State v. Baker, the court held that due process required sending the notice to the latest address known to the Department, which in Baker's case was an address given at the time of a recent traffic infraction. Baker, 49 Wash.App. at 779-82, 745 P.2d 1335.
In response to Baker, the Legislature provided that the exclusive means of changing the Department's record of a licensee's address is by written advice from the licensee. Notices, including notice of revocation, are deemed effective if mailed to the last address formally provided. RCW 46.20.205 (1989 amendment). The Washington State Supreme Court has held that compliance with the new statute satisfies due process, regardless of whether the notice is actually received. See Storhoff, 133 Wash.2d at 526 n. 2, 946 P.2d 783.
In Dolson's case, the Department followed the Baker procedure instead of the (then) new statute. The Department mailed the May 1990 notice to the address Dolson provided when arrested in September 1989 for driving while license suspended. Dolson claims the notice was ineffective because he did not formally provide this address to the Department under RC 46.20.205.
Under any common sense analysis, the Department acted diligently to attempt to give Dolson notice at his last known address. Dolson essentially argues that the Department acted too diligently. Dolson does not explain where the Department should have sent notice, nor does he make any allegation of prejudice. He simply characterizes the technical statutory violation as a constitutional violation, without analysis. The superior court apparently agreed.
We do not. First, Dolson demonstrates no prejudice whatsoever. Prejudice must be demonstrated before procedural violations will be held to be due process violations. Storhoff, 133 Wash.2d at 532, 946 P.2d 783. Dolson claims he obtained an identification card sometime after 1986, but does not indicate when, nor what address he provided, much less that the address provided then would have resulted in notice to him in 1990. Nor does he suggest that he provided an address at any time between the September 1989 citation and the mailing of notice of revocation in May 1990. His numerous driving violations document at least six changes of address from 1991 to 1996. Nothing suggests he formally apprised the Department of these changes. The Department took reasonable steps in its efforts to notify Dolson.
In contrast, Dolson has neither demonstrated that he complied with his statutory duty to update his address nor suggested that he would have received the revocation notice had it been delivered to the last address he directly provided. There is thus no hint of prejudice here. The superior court erred in finding a due process violation.
As indicated, the Department's procedure was far more likely to result in actual notice to Dolson than was the statutory procedure. Dolson argues, however, that absent strict compliance with statutory process, revocation is ineffective. We reject this argument. In Storhoff, the notices not only were not received, they were inaccurate as to the statutory time period for requesting a hearing. The court held the violations minor and found no due process violation.
Cases cited by Dolson do not support his position here. In Responsible Urban Growth Group v. City of Kent, 123 Wash.2d 376, 389, 868 P.2d 861. (1994), the court found that Kent did not satisfy due process notice requirements when making a zoning decision. Kent did not comply with two statutes by failing to send notice to surrounding landowners and by failing to publish notice. R.U.G.G., 123 Wash.2d at 389, 868 P.2d 861. The court implied, however, that had the parties received actual notice, the statutory violations would have been moot: "If notice fails to apprise parties of the nature and purpose of proceedings[,] the good intentions of officials in satisfying statutory requirements are irrelevant." R.U.G.G., 123 Wash.2d at 386, 868 P.2d 861.
In Fraser v. Beutel, 56 Wash.App. 725, 727, 731-33, 785 P.2d 470, review denied, 114 Wash.2d 1025, 794 P.2d 508 (1990), the court held that failure to comply with the statutorily mandated five-day written notice requirement for a "reasonableness of settlement" hearing rendered the reasonableness determination non-binding on a non-settling released defendant. There, the non-settling defendant received only one-day telephonic notice, which the court held was insufficient because there was no excuse for untimely notification and there was no evidence of waiver. The court thus distinguished precedent, finding that waiver and actual notice could be used to effectively satisfy the written notice requirement when "no prejudice ensues." Fraser, 56 Wash.App. at 732-33, 785 P.2d 470 ().
In Dependency of C.R.B., 62 Wash.App. 608, 619, 814 P.2d 1197 (1991), this court held a default order terminating a mother's parental...
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State v. Dolson
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