Alforde v. Department of Licensing

Brown, C.J. — The Department of Licensing (DOL) appeals a superior court order reversing the suspension of Nicholas E. Alforde’s driver’s license under RCW 46.20.308, the implied consent law. The technical deficiency, successfully but incorrectly urged by Mr. Alforde to the superior court, was DOL’s failure to provide the arresting officer’s signature on a DOL created certificate/declaration form when forwarding documents to the hearing officer. We granted discretionary review to clarify the prima facie evidence requirements at the administrative review hearing under RCW 46.20.308(8). We decide a prima facie case is established by a sworn report, or a self-certified report under a declaration authorized by RCW 9A.72.085, so long as the facts provided are sufficient to support the evidentiary issues of RCW 46.20.308(8). Here, prima facie evidence was established in a sworn report or self-certified report. Substantial evidence supports the outcome. Accordingly, we reverse. FACTS In the early morning of November 4, 2000, Officers Andrew Hall and Ray Turner saw a vehicle driven by Mr. — 578 — Alforde fail to come to a complete stop at a stop sign. Upon contact, the officers collected evidence leading to Mr. Alforde’s arrest for driving under the influence (DUI) and transported him to the corrections center. Officer Hall read Mr. Alforde his implied consent warning, and Mr. Alforde agreed to a breath test. Mr. Alforde’s breath samples indicated an alcohol concentration of .107 and .110. Under RCW 46.20.308(6)(e), Officer Hall submitted a “sworn report” in the form of a “Report of Breath/Blood Test for Alcohol” (later referred to as Exhibit 1) to DOL. Mr. Alforde’s license was suspended per RCW 46.20.308(7). Mr. Alforde requested an administrative hearing pursuant to RCW 46.20.308(8) challenging the DOL suspension. Officer Hall was in Mexico when the Ellensburg Police Department sent a document packet to the hearing examiner. The packet contained Exhibit 1, the sworn report, and Exhibit 2, consisting of the self-certified police reports of the two officers and accompanying evidence. Left unsigned was a cover sheet declaration required by department policy forwarding the exhibits designed to signify the attached reports, copies of documents, and information to be true, correct, and accurate. When the hearing officer asked for objections to consider Exhibits 1 or 2, Mr. Alforde’s counsel had no objection to Exhibit 1, “since it is just the existence of the document which invokes the jurisdiction.” Clerk’s Papers (CP) at 52. Then, regarding Exhibit 2, Mr. Alforde’s counsel stated, “I do not wish to waive any argument that I may have as to the validity or the weight that may be given to exhibit 2 but if the admission is merely for them to be considered by you, I would have no objection.” CP at 52. After the examiner admitted the exhibits, Mr. Alforde presented no evidence at the 10-minute telephonic hearing. Instead, Mr. Alforde’s counsel argued DOL had not met its prima facie burden because the cover sheet had not been signed by Officer Hall. After considering Exhibit 1 and Exhibit 2, the hearing examiner affirmed the suspension of Mr. Alforde’s driving privileges, deciding the documents submitted established a — 579 — prima facie case. On appeal, the superior court reversed the hearing examiner, finding the documents attached to the unsigned declaration were not admissible and the omission did not “constitute a mere technical deficiency.” CP at 84. We granted discretionary review. ANALYSIS The issue is whether the prima facie evidence requirements of RCW 46.20.308 were satisfied by the exhibits before the DOL hearing officer when considering Mr. Alforde’s objection that Officer Hall failed to sign the departmentally required cover sheet declaration forwarding the exhibits to DOL. In reviewing a license revocation decision, we stand in the same position as the superior court. Grewal v. Dep’t of Licensing, 108 Wn. App. 815, 819, 33 P.3d 94 (2001) (citing Walk v. Dep’t of Licensing, 95 Wn. App. 653, 656, 976 P.2d 185 (1999)). The court normally reviews a DOL final order in the same manner as an appeal from a decision of a court of limited jurisdiction. Walk, 95 Wn. App. at 656. While “we may substitute our judgment for that of the administrative body, we accord substantial weight to the agency’s view of the law.” Id. Under RCW 46.20.308(9), our review is “limited to a determination of whether the department has committed any errors of law.” We are required to “accept those factual determinations supported by substantial evidence in the record: (a) That were expressly made by the department; or (b) that may reasonably be inferred from the final order of the department.” RCW 46.20.308(9). “The implied consent law provides that a person who drives in [Washington] is considered to have consented to a test to determine the alcohol content of that person’s blood or breath if arrested for suspicion of driving under the influence of intoxicating liquor or any drugs.” Cannon v. Dep’t of Licensing, 147 Wn.2d 41, 47, 50 P.3d 627 (2002); RCW 46.20.308(1). After arrest, if a driver submits to a test with results indicating an alcohol concentration of .08 or — 580 — higher, the arresting officer must serve written notice on the person of the intent of DOL to suspend, revoke, or deny the person’s driving privileges. RCW 46.20.308(7); Cannon, 147 Wn.2d at 47. The officer must also submit a sworn report to DOL within 72 hours. RCW 46.20.308(6)(e). DOL’s receipt of the sworn report is the jurisdictional prerequisite to DOL’s power to institute license revocation proceedings. Grewal, 108 Wn. App. at 819. The parties here do not dispute that Officer Hall timely submitted a sworn report with the proper declaration. Once DOL suspends the driver’s license, the driver is afforded an opportunity to have an administrative hearing. Cannon, 147 Wn.2d at 47-48. Such hearing is governed by RCW 46.20.308(8). The scope of the hearing covers whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle in Washington while under the influence of intoxicating liquor. RCW 46.20.308(8). “At the hearing, the law enforcement officer’s sworn report. . . and any other evidence accompanying it, as well as certifications authorized by the criminal rules for courts of limited jurisdiction, are admissible . . . without further evidentiary foundation.” Cannon, 147 Wn.2d at 51 (footnote omitted). This court has observed: “[T]he sworn report and the complete police report... constitute prima facie evidence that the implied consent statute was complied with by the officer(s).” Lytle v. Dep’t of Licensing, 94 Wn. App. 357, 362, 971 P.2d 969 (1999). RCW 46.20.308(8) contains two “sworn report” clauses. First, in a prima facie evidence clause contained in the first paragraph, it provides: The sworn report or report under a declaration authorized by RCW 9A.72.085 submitted by a law enforcement officer is prima facie evidence that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs, or both, or the person had been driving or was in actual physical control of a motor — 581 — vehicle within this state while having alcohol in his or her system in a concentration in violation of RCW 46.61.503 and was under the age of twenty-one and that the officer complied with the requirements of this section. RCW 46.20.308(8). Second, in an unnumbered second paragraph, after describing hearing conduct, witness subpoena, and document production requirements, RCW 46.20.308(8) provides: The sworn report or report under a declaration authorized by RCW 9A.72.085 of the law enforcement officer and any other evidence accompanying the report shall be admissible without farther evidentiary foundation and the certifications authorized by the criminal rules for courts of limited jurisdiction shall be admissible without further evidentiary foundation. (Emphasis added.) Here, pursuant to RCW 46.20.308(6)(e) providing for the transmission of “a sworn report or report under a declaration authorized by RCW 9A.72.085,” Officer Hall sent Exhibit 1, a sworn report, to DOL. Mr. Alforde requested a review hearing. The Ellensburg Police Department forwarded documents, including Exhibit 1, the traffic infraction, the incident report, the DUI incident report, Officer Hall’s complete police report with a signed declaration, and Officer Turner’s complete police report with a signed declaration. The sworn report and the self-certified material is sufficient to establish a prima facie case that the officers “had reasonable grounds to believe [Mr. Alforde] had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor.” RCW 46.20.308(8). Mr. Alforde argues the second sworn report clause of RCW 46.20.308(8), Lytle, and the departmental requirement for a declaration supporting the cover sheet document support reversal of his license suspension. The arguments fail. First, the sworn report clause in the second paragraph of RCW 46.20.308(8) follows and pertains to certain witness — 582 — subpoena requirements when made at the request of drivers. It does not provide for any further DOL evidentiary foundation under RCW 46.20.308(8) or limited court certification requirements apart from the requirements of the first paragraph’s prima facie evidence clause. Instead, the second sworn report clause limits the need for the State to call witnesses, but does not prevent a driver from calling witnesses to contest the DOL case. For example, if DOL meets its prima facie evidence requirements as specified in the first paragraph of RCW 46.20.308(8), admissibility is determined and DOL may rest without calling witnesses to further authenticate its documentation. If the driver presents no evidence, as was the case here, then the hearing officer can, without more, apply RCW 46.20.308(8) to the case facts after deciding the weight of the evidence. For purposes of this opinion, we need not definitively construe the contested language of the second sworn report clause of RCW 46.20.308(8) regarding “and any other evidence accompanying the report” because it is irrelevant to whether Exhibit 1 and the officers’ self-certified reports contained within Exhibit 2 satisfy the prima facie evidence requirements of the first paragraph. As apparently conceded at oral argument, they do. Mr. Alforde candidly argued the technical nature of this issue. In our context, the contested language refers to the self-certified reports of the police officers who were involved with Mr. Alforde’s arrest and license suspension. No issue is presented regarding whether any other evidence accompanied the self-certified reports beyond the original reports under the auspices of the unsigned cover sheet. The contested language does not grant an unlimited license to DOL to submit material under its cover sheet beyond that permitted in RCW 46.20.308. Notably, RCW 46.20.308(8) in both unnumbered paragraphs specifically refers to: “The sworn report or report under a declaration authorized by RCW 9A.72.085.” The use of the definite article “The” in RCW 46.20.308(8) refers back to the usage — 583 — earlier applied in RCW 46.20.308(6)(e) and RCW 46.20.308(7) providing for submission of “a” sworn report or report under the statutory declaration by or of a law enforcement officer. Second, as Mr. Alforde points out in his brief at page 9, Lytle pivoted around whether a subpoenaed officer’s presence was required to comport with due process, not whether the prima facie evidence requirements were satisfied. Lytle, 94 Wn. App. at 361. The reference in Lytle to the contested language referred to above did not control the outcome of that case, was dicta, and, thus, does not affect the outcome here. Third, while we do not condone Officer Hall’s failure to sign the cover sheet declaration attached to the documents, RCW 46.20.308(8) imposes no such burden. Rather, it is a departmental requirement and not the type of technical deficiency warranting reversal of Mr. Alforde’s license suspension. This is especially true since the documents necessary to establish a prima facie case received by the hearing officer were sworn to or contained self-certifications. Mr. Alforde did not object to Exhibit 1, as it was in his view merely a jurisdictional document under RCW 46.20.308(6)(e). Yet Exhibit 1 may be considered as well when deciding the prima facie case requirements under the first paragraph of RCW 46.20.308(8). Finally, Mr. Alforde’s somewhat obscure objection to Exhibit 2 allowed some consideration of Exhibit 2 by the hearing officer. CONCLUSION The hearing officer did not err when applying RCW 46.20.308(8). A prima facie case was established. Substantial evidence supports Mr. Alforde’s license suspension. Mr. Alforde’s request for attorney fees and costs is denied. — 584 — Reversed. Kato, J., concurs.