State v. Storhoff

• Decision Date: 13 November 1997
• Docket Number: No. 64860-3,64860-3
• Citation: 946 P.2d 783,133 Wn.2d 523
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. Douglas STORHOFF, Respondent. The STATE of Washington, Petitioner, v. Virgil TUCKER, Respondent. The STATE of Washington, Petitioner, v. Jeffrey S. OROPESA, Respondent.

Page 523

133 Wn.2d 523

946 P.2d 783

The STATE of Washington, Petitioner, v. Douglas STORHOFF, Respondent.

The STATE of Washington, Petitioner, v. Virgil TUCKER, Respondent.

The STATE of Washington, Petitioner, v. Jeffrey S. OROPESA, Respondent.

No. 64860-3.

Supreme Court of Washington En Banc.

Argued May 27, 1997.

Decided Nov. 13, 1997.

Russell Hauge, Kitsap County Prosecutor, Pamela B. Loginsky, Deputy, Port Orchard, for petitioner.

Crawford, McGilliard & Peterson, David R. Johnson, Port Orchard, for respondent.

DURHAM, Chief Justice.

Habitual traffic offenders Douglas Storhoff, Virgil Tucker, and Jeffrey S. Oropesa (Defendants) seek dismissal of charges of driving while license revoked ¹ based on incorrect notices of the time limit for requesting a formal license revocation hearing under RCW 46.65.065(1). We hold that the incorrect revocation notices (1) did not violate procedural due process, and (2) do not otherwise preclude prosecution of the Defendants for driving while license revoked in the absence of actual prejudice to the Defendants. Background:

The Department of Licensing (DOL) sent each Defendant written notice that, as a habitual traffic offender, the Defendant's license had been revoked. Each notice stated that the Defendant could request a formal hearing pursuant to "RCW 46.65." Each notice incorrectly stated that the Defendant had only 10 days to request a formal revocation hearing. At the time the DOL notices were sent, RCW 46.65.065(1) allowed 15 days to request a hearing. Defendants Storhoff and Oropesa never received their revocation notices because each had moved without notifying DOL of their new addresses. ² Defendant Tucker actually received his notice but never requested a revocation hearing.

Defendants were subsequently charged with driving while license revoked. Each Defendant moved to dismiss, arguing that DOL's failure to correctly inform them of the time limit for requesting a formal hearing violated due process, precluding prosecution for driving while license revoked. Defendants did not allege, and have never alleged, that they were actually prejudiced by the incorrect revocation notices.

The District Court granted the Defendants' motions. The Superior Court denied the State's RALJ appeal. The Court of Appeals reversed, observing that the incorrect revocation notices could not have caused Storhoff's and Oropesa's failures to request a formal hearing. The Court of Appeals invited defendant Tucker to establish on remand that he would have requested a hearing if he had received a correct notice. State v. Storhoff, 84 Wash.App. 80, 83-84, 925 P.2d 640 (1996), review granted, 131 Wash.2d 1015, 936 P.2d 416 (1997). We granted review. Notice of Habitual Traffic Offender Status--RCW 46.65.065:

When a person is determined to be a habitual traffic offender, as defined by RCW 46.65.020, DOL must notify that person that his or her license will be revoked, and that the person may request a formal hearing:

Notices of revocation shall inform the recipient thereof of his or her right to a formal hearing and specify the steps which must be taken in order to obtain a hearing. Within fifteen days after the notice has been given, the person may, in writing, request a formal hearing.

RCW 46.65.065(1). DOL's revocation notices clearly violated this provision by incorrectly stating that a revocation hearing must be requested within 10 days.

Procedural Due Process:

An administrative revocation of a driver's license must comply with procedural due process. Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971). In a prosecution for driving while license revoked, the State has the burden to prove that the revocation of the defendant's license complied with due process. See State v. Whitney, 78 Wash.App. 506, 514, 897 P.2d 374, review denied, 128 Wash.2d 1003, 907 P.2d 297 (1995); City of Seattle v. Foley, 56 Wash.App. 485, 488, 784 P.2d 176, review denied, 114 Wash.2d 1016, 791 P.2d 534 (1990); State v. Baker, 49 Wash.App. 778, 782, 745 P.2d 1335 (1987), statutory abrogation recognized by State v. Rogers, 127 Wash.2d 270, 276, 898 P.2d 294 (1995); State v. Thomas, 25 Wash.App. 770, 610 P.2d 937 (1980).

Defendants contend the DOL notices violated due process simply because those notices were incorrect. However, minor procedural errors do not necessarily rise to the level of due process violations. Due process requires notice and an opportunity to be heard. Rogers, 127 Wash.2d at 275, 898 P.2d 294. To establish a violation of due process, Defendants must at least allege that the incorrect DOL revocation notices deprived them of notice and/or an opportunity to be heard. See Broom v. Department of Licensing, 72 Wash.App. 498, 505, 865 P.2d 28 (1994). But the Defendants, including defendant Tucker, have not explained how DOL's error deprived them of notice of their license revocations or their opportunity to request a formal hearing.

Furthermore, due process does not require express notification of the deadline for requesting a formal hearing as long as the order of revocation cites the statute that contains the applicable time limit. Payne v. Mount, 41 Wash.App. 627, 635, 705 P.2d 297 (termination letter citing statute containing applicable ten-day deadline for appeals to the civil service commission satisfied the minimum notice requirements of due process), review denied, 104 Wash.2d 1022 (1985), appeal dismissed, 476 U.S. 1154, 106 S.Ct. 2269, 90 L.Ed.2d 713 (1986); McConnell v. Seattle, 44 Wash.App. 316, 325, 722 P.2d 121 (1986). The DOL revocation notices cited RCW 46.65, the statute containing the hearing request time limit.

Defendants attempt to distinguish Payne and McConnell, arguing that the citation to "RCW 46.65" in the DOL notices was not sufficiently specific to provide notice of the hearing request time limit. DOL's failure to specifically cite RCW 46.65.065(1) neither distinguishes Payne and McConnell nor establishes that the notices failed to provide sufficient notice. To the average person, the main obstacles presented by DOL's citation to "RCW 46.65" (the entire Washington Habitual Traffic Offenders Act) would be to determine the meaning of the unfamiliar citation, and obtain a copy of the statute from a law library. Having accomplished that much, a person would find it a comparatively simple matter to locate the hearing request time limit in RCW 46.65.065(1). RCW 46.65 is only two pages long. ³

In the absence of any suggestion that the erroneous DOL revocation notices deprived Defendants of notice or an opportunity to be heard, we hold that the notices did not violate the Defendants' rights to procedural due process. ⁴

DOL's Failure to Comply With RCW 46.65.065(1):

Defendants also contend DOL's mere violation of RCW 46.65.065(1) invalidates the revocation of their licenses, or otherwise precludes their prosecution for driving while license revoked. ⁵ Defendants suggest that there is a critical distinction between civil cases that require a showing of prejudice and criminal cases that do not require a showing of prejudice. Defendants' argument is largely based on a Court of Appeals case, City of Spokane v. Holmberg, 50 Wash.App. 317, 745 P.2d 49 (1987), and our decision in Gonzales v. Department of Licensing, 112 Wash.2d 890, 774 P.2d 1187 (1989).

In Holmberg, defendants charged with driving while intoxicated argued that their breath test results should be suppressed due to the arresting officers' failure to advise them that their refusal to submit to the breath test could be used against them in a criminal trial. Despite the obvious lack of prejudice to the defendants, the Court of Appeals held that the error required the suppression of the test results. "Society is penalized when officers derogate from the mandates of the Legislature." Holmberg, 50 Wash.App. at 324, 745 P.2d 49. The Holmberg court cited no authority supporting its conclusion that the defendants were not required to show actual prejudice. ⁶

In Gonzales, drivers whose licenses were revoked for refusing to take a breath test appealed their revocations. The licensees had been warned that they had the right to take additional tests "at your own expense." Gonzales, 112 Wash.2d at 893, 774 P.2d 1187. The statutory warnings did not include the "at your own expense" language and, with respect to indigent drivers, such additional language was inaccurate. However, the licensees made no claim of indigence and were consequently not prejudiced by the inaccurate warning. Gonzales, 112 Wash.2d at 902, 774 P.2d 1187. Relying on Holmberg, the Gonzales licensees argued that no showing of prejudice was necessary. Rejecting this argument, the Gonzales court quickly distinguished Holmberg, observing that Holmberg was a criminal case. Gonzales, 112 Wash.2d at 900, 774 P.2d 1187.

Based on this apparent civil/criminal distinction, the present Defendants argue that they, like the defendants in Holmberg, are not required to demonstrate any prejudice in a criminal prosecution. But the distinction suggested in Gonzales and relied on by Defendants is illusory. While Gonzales seemed to suggest that we would follow Holmberg in a criminal case, we have not done so. In a companion criminal case, State v. Bartels, 112 Wash.2d 882, 774 P.2d 1183 (1989), decided on the same day as Gonzales, this court declined to follow Holmberg.

In Bartels, defendants charged with driving while intoxicated moved to suppress their breath test results based on the same erroneous warning as in Gonzales. Again, this court acknowledged that the "at your own expense" language was inaccurate with respect to indigent defendants. Bartels, 112 Wash.2d at 889, 774 P.2d 1183. Like the licensees in Gonzales, the Bartels defendants relied on Holmberg for the proposition that the erroneous warning language required suppression of test results whether they were indigent or not. We disagreed. Ignoring the suggestion in Gonzales that ...