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Nielsen v. Department of Licensing

Court of Appeals of Washington, Division 1

September 30, 2013

Kai Nielsen, Appellant,
The Department of Licensing, Respondent

Page 1222

Appeal from Superior Court Snohomish County. Superior Court Cause No: 11-2-06081-9. Date filed in Superior Court: November 30, 2011. Superior Court Judge Signing: Hon. Joseph P. Wilson.

Ryan B. Robertson (of Robertson Law PLLC ), for appellant.

Robert W. Ferguson, Attorney General, and Leah E. Harris, Assistant, for respondent.

AUTHOR: Dwyer, J. Appelwick, J. concurs. Verellen, J. (dissenting).


Page 1223

Dwyer, J.

[177 Wn.App. 48] ¶ 1 Washington's implied consent law provides for the revocation of a licensee's driver's license where the licensee is arrested for driving while under the influence and refuses to submit to a blood or breath alcohol test. The law provides such licensees with procedural protections, including the right to appeal to the superior court from an administrative license revocation. Following license revocation, the licensee can apply for an ignition interlock driver's license (IIDL), which allows the licensee to lawfully operate a motor vehicle during the revocation. However, the IIDL statute precludes a licensee who obtains an IIDL from thereafter asserting the statutory right to judicial appeal from the administrative decision imposing the revocation.

¶ 2 Kai Nielsen obtained an IIDL following the administrative revocation of his driver's license pursuant to the implied consent law. He thereafter appealed from the Department of Licensing's (Department) revocation ruling, seeking review of the ruling in the superior court. The court dismissed Nielsen's appeal, determining that he had waived his right to judicial review by obtaining an IIDL. Nielsen challenges the superior court's decision, asserting that the appeal waiver provision is unconstitutional. We conclude that the challenged provision, which is not rationally related to a legitimate state interest, violates substantive due process protections. Accordingly, we determine that the appeal waiver provision of the IIDL statute is unconstitutional.

[177 Wn.App. 49] I

¶ 3 Washington's implied consent law was passed by popular initiative in 1968. Laws of 1969, ch. 1, § 1 (Initiative 242, adopted Nov. 5, 1968); State v. Morales, 173 Wn.2d 560, 571-72, 269 P.3d 263 (2012). Codified at RCW 46.20.308, the law " provides law enforcement officers with an effective means of obtaining physical evidence of intoxication since any person operating a motor vehicle on the roads of this state is deemed to have consented to the administration of a blood alcohol test." State v. Bartels, 112 Wn.2d 882, 885, 774 P.2d 1183 (1989). " If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year." RCW 46.20.308(2)(a).

¶ 4 The people of Washington, in passing the implied consent initiative, provided procedural protections to licensees who are subject to administrative license revocation pursuant to that law. See Laws of 1969, ch. 1, § 5. [1] The statute provides to such licensees an administrative hearing before a department hearing officer to contest the license revocation. RCW 46.20.308(6)(b), (8). Moreover, where the license revocation is sustained by the department hearing officer, the implied consent law grants to the licensee

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the right to access the courts in order to challenge the administrative revocation:

If the suspension, revocation, or denial is sustained after such a hearing, the person whose license, privilege, or permit is suspended, revoked, or denied has the right to file a petition in [177 Wn.App. 50] the superior court of the county of arrest to review the final order of revocation by the department in the same manner as an appeal from a decision of a court of limited jurisdiction.

RCW 46.20.308(9). The license revocation may not be stayed during the pendency of the appeal unless the court determines that the licensee " is likely to prevail in the appeal" and that he or she " will suffer irreparable injury" without a stay. [2] RCW 46.20.308(9).

¶ 5 In 2008, our legislature enacted legislation providing for the issuance of an IIDL to licensees whose regular driver's licenses had been revoked pursuant to the implied consent law. RCW 46.20.385(1)(a). [3] An IIDL is a permit issued by the Department " that allows the person to operate a noncommercial motor vehicle with an ignition interlock device while the person's regular driver's license is suspended, revoked, or denied." RCW 46.04.217. The licensee may apply for an IIDL at any time, including upon receiving notice of the revocation. RCW 46.20.385(1)(b). However, pursuant to RCW 46.20.385(1)(b), a person who receives an IIDL is thereafter not entitled to the procedural protections provided by the implied consent law: " A person receiving an ignition interlock driver's license waives his or her right to a hearing or appeal under RCW 46.20.308."

¶ 6 Legislative bill reports demonstrate the concern prompting our legislature to enact the IIDL statute. According to testimony before the legislature, a large number of people whose licenses had been revoked were nevertheless continuing to drive. H.B. Rep. on Second Substitute H.B. 3254, at 5, 60th Leg., Reg. Sess. (Wash. 2008). The ignition interlock device was described as " [t]echnology [that] will [177 Wn.App. 51] prevent people from driving drunk," and, thus, issuance of an IIDL was intended to " hold [drunk drivers] accountable." H.B. Rep. on Second Substitute H.B. 3254, at 5. Moreover, a legislative report noted that department data showed a " 'significant difference in the amount of recidivism'" between those drunk drivers who later had the ignition interlock device installed and those who did not. S.B. Rep. on Second Substitute H.B. 3254, at 2, 60th Leg., Reg. Sess. (Wash. 2008). [4] Thus, it appears logical to conclude that, in enacting the IIDL statute, our legislature intended to reduce the incidence of illegal drunk driving, thus protecting motorists in our state.

¶ 7 Pursuant to the implied consent law, Kai Nielsen's driver's license was revoked for one year following his arrest for driving under the influence and his subsequent refusal to submit to an alcohol breath test. Nielsen requested an administrative hearing to challenge the revocation. Following the hearing, which was conducted by telephone on May 12, 2011, the department hearing officer sustained the revocation of Nielsen's driver's license. Nielsen thereafter applied for an IIDL pursuant to RCW 46.20.385. The IIDL application was granted.

¶ 8 Nielsen then filed a timely appeal in the Snohomish County Superior Court, seeking judicial review of the Department's revocation ruling. The Department filed a motion to dismiss the appeal, asserting that,

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pursuant to RCW 46.20.385(1)(b), Nielsen had waived his right to judicial appeal when he applied for and received the IIDL. Nielsen responded, contending that the waiver provision set forth in the IIDL statute--which precludes a person who has received an IIDL from asserting his or her right to seek judicial review of the administrative decision pursuant [177 Wn.App. 52] to the ...

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