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Soushek v. State, Department of Licensing

Court of Appeals of Washington, Division 1

November 20, 2017

EARL M. SOUSHEK, Appellant,
v.
STATE OF WASHINGTON DEPARTMENT OF LICENSING, Respondent.

          COX, J.

         The primary issue in this case is whether Earl Soushek was entitled to assert a statutory affirmative defense to the revocation or suspension of his driver's license pursuant to the Implied Consent Statute. Specifically, was he entitled to assert the defense, which first became effective on September 26, 2015, in response to an "action ... to suspend, revoke, or deny the privilege to drive" commenced prior to that date. Because statutes are presumed to operate prospectively, and Soushek fails in his burden to show that the affirmative defense statute operates otherwise, we affirm the suspension of his driver's license.

         The material facts are undisputed. At 9:26 a.m. on August 27, 2015, a Renton police officer conducted a welfare check after receiving a report of a car with its engine running, in the parking lot in front of a Dairy Queen. He saw Soushek sitting in the driver's seat, slumped over. The keys were in the ignition, the car was in park, and the motor was running. The officer observed a large glass bottle containing a dark brown liquid on the passenger side of the vehicle. He removed the keys from the ignition and placed them on the roof of the vehicle for public safety.

         The officer suspected that Soushek was impaired, but Soushek denied drinking. Soushek told the officer that his friend had been driving and he had not. He said that his friend was working across the street. The officer noted that Soushek had glossy, watery eyes, an odor of intoxicants on his breath, and repetitive and slurred speech.

         The officer arrested Soushek on suspicion of having physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. Soushek . voluntarily submitted to a breath test, and the results showed that his breath alcohol content exceeded the .08 limit.

         The Department notified Soushek that his license would be suspended for two years pursuant to the Implied Consent Statute.

         Thereafter, on September 26, 2015, an amendment to RCW 46.61.504 became effective. In substance, the amendment created a statutory affirmative defense to an action to suspend or revoke a driver's license under the Implied Consent Statute.

         Soushek requested a hearing to contest the action to suspend his license. At his hearing on November 9, 2015, he asserted the affirmative defense that became effective on September 26, 2015. Specifically, he claimed that he had moved the car safely off the roadway prior to the police officer checking on him.

         The hearing officer sustained the Department's suspension of Soushek's driver's license. On RALJ review, the superior court affirmed the hearing officer's decision.

         We granted Soushek's motion for discretionary review.

         AVAILABILITY OF THE AFFIRMATIVE DEFENSE

         Soushek argues that he was entitled to assert the statutory affirmative defense, which first became effective on September 26, 2015, at his hearing on November 9, 2015. We disagree.

         The Implied Consent Statute requires the Department to suspend or revoke the driving privileges of someone who is arrested for being in physical control of a vehicle while under the influence of alcohol and whose breath test reveals an alcohol concentration above the legal limit.[1] That statute governs this court's review.[2]

         We review the Department's decision from the same position as the superior court, and review is conducted in the same manner as an appeal from a decision of a court of limited jurisdiction.[3] We determine whether the Department committed any errors of law.[4]

         "Statutory amendments are presumed to operate prospectively."[5] "On a practical level, we consider a statute to be retroactive if the 'triggering event' for its application happened before the effective date of the statute."[6] A statute operates prospectively if the triggering or "'precipitating event for operation of the statute occurs after enactment, even when the precipitating event originated in a situation existing prior to enactment.'"[7]

         We review de novo the applicability of an amended statute.[8]

         Before 2015, the physical control of a motor vehicle statute provided that it was an affirmative defense to the crime of having physical control over a motor vehicle while under the influence of intoxicating liquor or drugs. The defense applies if "prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway."[9]

         In 2015, the legislature amended the physical control statute to apply this same "safely off the roadway" ("SOTR") affirmative defense to license suspension and revocation proceedings brought pursuant to the Implied Consent Statute.[10] The amendment took effect September 26, 2015.[11] It provided, in relevant part, as follows:

No person may be convicted under this section and it is an affirmative defense to any action pursuant to RCW 46.20.308 to suspend, revoke, or deny the privilege to drive if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.[12]

         Soushek argues that he was entitled to assert the SOTR affirmative defense because the amendment to RCW 46.61.504 was in effect at the time of his hearing on November 9, 2015. This is incorrect.

         Statutes presumably operate prespectively. It is his burden to show otherwise.

         Soushek argues that the SOTR amendment operates prospectively here because the triggering or precipitating event was the administrative hearing to revoke or suspend his license. He argues that the hearing was the first time he could raise the affirmative defense and the first time the hearing officer had an opportunity to consider it. This argument is unpersuasive.

         In determining a statute's triggering date, we first look at the plain language of the enactment.[13] Here, the plain language provides that the affirmative defense is available in "any action pursuant to RCW 46.20.308 to suspend, revoke, or deny the privilege to drive."[14] The word "action" is not defined in the statute.

         "[W]hen a statutory term is undefined" we may look to a dictionary definition to determine the term's meaning.[15] "Action" in the legal sense has been defined as a "civil or criminal judicial proceeding."[16] Thus, the "action" referred to in the SOTR amendment is a civil action by the Department to suspend or revoke a driver's license.

         But this definition of the word "action" is not particularly helpful to the extent it suggests that the affirmative defense may be asserted at any time during the administrative proceeding. For example, depending on the circumstances of a particular case, there could be various times during the "action" when the affirmative defense might be asserted. It would not necessarily be confined to the hearing itself, as Soushek argues. Rather, his argument suggests a moving target for the triggering event-when an affirmative defense may be asserted-and makes no sense.

         This administrative process is a civil proceeding, and in civil proceedings, actions are considered to commence upon serving notice of a complaint.[17] Thus, the "action" for purposes of RCW 46.61.504(2) and the Implied Consent Statute begins, and the affirmative defense triggered, when the Department revokes a driver's license.

         Relying on Frank v. Washington State Department of Licensing, the Department argues that the action began when it notified Soushek of the revocation.[18] In Frank, Division Three of this court observed that a license revocation proceeding involves a "three-step process."[19] The first step is the Department's revocation of the driver's license.[20] If the driver ...


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