Oral Argument February 25, 2015.
[Copyrighted Material Omitted]
Appeal from King County Superior Court. Docket No: 13-2-14088-8. Judge signing: Honorable Kimberley Diane Prochnau. Judgment or order under review. Date filed: 11/15/2013.
David B. Johnston, Gregory A. McBroom, and John J. White Jr. (of Livengood Alskog PLLC ), for appellant.
Robert W. Ferguson, Attorney General, and Jeremy M. Gelms, Assistant, for respondent.
Authored by Linda Lau. Concurring: Ann Schindler, Mary Kay Becker.
[186 Wn.App. 801] Linda Lau, J.
¶ 1 The Washington Department of Licensing suspended Yuri Prostov's driver's license for using his twin brother's name in a license application. He contends the importance of a licensee's private interest requires proof by evidence beyond a reasonable doubt or clear, cogent, and convincing evidence as a matter of due process. The department's burden of proof in an administrative license proceeding under RCW 46.20.291(7) and RCW 46.20.0921(1)(e) to suspend or revoke a license is the preponderance of the evidence standard. This standard of proof strikes a fair balance between the rights of a licensee and the State's legitimate interest in regulating vehicle drivers. We conclude that such a standard adequately conveys to the fact finder the level of subjective certainty about the factual conclusion necessary to satisfy due process. We affirm the suspension of Yuri Prostov's driver's license under RCW 46.20.291(7) and RCW 46.20.0921(1)(e). We also affirm the trial court's denial of Yuri's attorney fees request.
FACTS AND PROCEDURAL HISTORY
¶ 2 Yuri Prostov and Geirman Prostov are identical twin brothers.  The Washington Department of Licensing issued driver's licenses to each of them.
¶ 3 In 2010, the department performed a routine " scrub" of its files using facial recognition
software designed to identify fraud. Report of Proceedings (RP) at 18-19. The software compares individual driver photos to other photos contained in the department's database. This software identified photos of Yuri and Geirman for further review.
[186 Wn.App. 802] ¶ 4 The department assigned Jessica Bullock from the department's Licensing Integrity Unit to investigate. Bullock compared the department's photos of Yuri and Geirman to determine possible matches. Bullock focused on durable characteristics that are less likely to change over time, such as scars, birthmarks, ears, nose, eye shape, and lips. She noted several differences in the photos of the brothers, including a scar on the right side of Yuri's upper lip.
¶ 5 Bullock concluded that Yuri obtained a driver's license at the Kirkland licensing center using Geirman's name on June 25, 2001 and on January 28, 2009. The department issued an order suspending Yuri's license for 364 days for using a false name in a driver's license application, contrary to RCW 46.20.0921(1)(e). Yuri appealed, and the hearing examiner affirmed the department's decision after an administrative hearing.
¶ 6 In Washington, drivers facing license suspension under RCW 46.20.291 are entitled to several procedural protections. First, the driver must receive notice and an opportunity for a driver improvement interview. RCW 46.20.322. A driver may file a written statement, present evidence, and present argument before an analyst sitting as a " referee." RCW 46.20.327. Following an adverse finding, the driver may request a formal hearing to contest the department's decision. RCW 46.20.328. At the hearing, the driver may introduce evidence, subpoena witnesses, and present argument on the record. RCW 46.20.332. Following a determination at the hearing, the driver may appeal to the superior court for a de novo hearing. RCW 46.20.334. A license suspension is stayed pending the outcome of the formal hearing and an appeal to superior court. RCW 46.20.329. Yuri requested a de novo hearing in superior court under RCW 46.20.334.
[186 Wn.App. 803] ¶ 7 The trial court admitted the department's photos of Yuri and Geirman. Bullock testified for the department about her investigation. The trial court compared the photos of Yuri and Geirman rather than permitting Bullock to testify about her comparison of the photos.
¶ 8 Department of Licensing hearings examiner manager Laurie Provoe worked for the department for almost 35 years. She generally testified about the license application procedures.
¶ 9 Yuri also testified and confirmed that his facial scar extended from the right side of his upper lip to the right side of his nose since at least 2001. He also confirmed that Geirman had no facial scar.
¶ 10 The court observed Yuri's facial scar in court and noted that Geirman's photos showed no facial scar. The court also noticed that unlike Yuri's straight nose, Geirman's nose bends slightly to the left. The court concluded that the photo in Yuri's license issued under Geirman's name is significantly different from the photo of Geirman in the known picture of Geirman. It
found that the photos in the 2009 license contained the same facial scar and nose structure as the photos of Yuri in exhibits 1R and 1S.
¶ 11 The court concluded that the department proved by a preponderance of the evidence that Yuri used a false or fictitious name to obtain the January 28, 2009 driver's license. The court also concluded that the department failed to prove by a preponderance that Yuri used his brother's [186 Wn.App. 804] name in a 2001 application. Based on its finding as to the 2009 license, the court upheld the department's 364-day suspension of Yuri's driver's license. The court also denied Yuri's request for attorney fees under the equal access to justice act, RCW 4.84.340.
¶ 12 Yuri appeals.
Burden of Proof
¶ 13 Yuri mainly challenges the trial court's conclusion that the preponderance of evidence standard applies to a license suspension proceeding under RCW 46.20.291(7) (prohibited practices statute). He argues that the text of the statute and principles of due process require proof beyond a reasonable doubt. In the alternative, he contends due process requires clear, cogent, and convincing evidence.
¶ 14 RCW 46.20.291 states in part:
The department is authorized to suspend the license of a driver upon a showing by its records or other sufficient evidence that the licensee:
(7) Has committed one of the prohibited practices relating to drivers' licenses defined in RCW 46.20.0921.
¶ 15 RCW 46.20.0921 (misdemeanor penalty statute) lists eight license-related practices that constitute a misdemeanor if violated. Relevant to this case, subsection .0921(1)(e) states:
(1) It is a misdemeanor for any person:
(e) To use a false or fictitious name in any application for a driver's license or identicard or to knowingly make a false statement or to knowingly conceal a material fact or otherwise commit a fraud in any such application.
[186 Wn.App. 805] Beyond a Reasonable Doubt Standard
¶ 16 Yuri contends, " The plain and unambiguous language of the statute requires the DOL [Department of Licensing] to prove that the licensee 'has committed' criminal statutory fraud, which can only be established using the beyond a reasonable doubt standard of review." Br. of Appellant at 10. We disagree.
¶ 17 The first rule of statutory construction is to give effect to the legislature's intent, which is primarily derived from the plain meaning of the statute. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). Absent a specialized statutory definition, courts give a term its plain and ordinary meaning. Plain meaning should be discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole. Lake, 169 Wn.2d at 526.
¶ 18 No relevant statute defines the term " commit." Yuri cites to a dictionary defining " commit" as " 'to carry into action deliberately: PERPETUATE < commit="" a="" crime=""> .'" Br. of Appellant at 12. He also cites to a law dictionary that defines " commit" as " '[t]o perpetuate (a crime). Black's Law Dictionary 266 (7th ed. 1999).'" (Alteration in original.)
¶ 19 Relying on these definitions, Yuri argues, " [U]nder its ['commit's'] plain meaning, RCW 46.20.291(7) requires the [department] to prove that the licensee perpetuated a criminal fraud under RCW 46.20.0921(1)(e)." Br. of Appellant at 12. He also argues that because the department " alleged" that he " 'committed' criminal statutory fraud," it must prove this ...