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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



EARL M. SOUSHEK,                                      No. 75345-2-1

                     Appellant,                       DIVISION ONE

               V.

STATE OF WASHINGTON                                   PUBLISHED
DEPARTMENT OF LICENSING,
                                                      FILED: November 20, 2017
                      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
No. 75345-2-1/2

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


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No. 75345-2-1/3

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




       1 RCW 46.20.308.
     2 Cannon v. Dep't of Licensing, 147 Wn.2d 41, 48, 50 P.3d 627(2002);
RCW 46.20.308(8).

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No. 75345-2-1/4

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.5

       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




                  Dep't of Licensing, 109 Wn. App. 371, 374, 35 P.3d 1171
       3 Clement v.
(2001); RCW 46.20.308(8).
       4   Id.; RALJ 9.1(a)(b).
       5 In   re Pers. Restraint of Flint, 174 Wn.2d 539, 546, 277 P.3d 657(2012).
       6 State   v. Pillatos, 159 Wn.2d 459, 471, 150 P.3d 1130(2007).
      7 Id. (quoting Matter of Estate of Burns, 131 Wn.2d 104, 110-11, 928 P.2d
1094 (1997).
       8 Watkins    v. Dep't of Licensing, 187 Wn. App. 591, 597, 349 P.3d 946
(2015).
       9   RCW 46.61.504(2).

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No. 75345-2-1/5

       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.1° 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 prospectively. 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.




       10   id.; see RCW 46.20.308.
       11   2015 2nd Spec. Session ch. 3§ 24.
       12   RCW 46.61.504(2)(emphasis added).

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No. 75345-2-1/6

       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.

       "[Wjhen 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.




       13   Pillatos, 159 Wn.2d at 471.
       14   RCW 46.61.504(2)(emphasis added).
       15 State   v. Be!garde, 119 Wn.2d 711, 716, 837 P.2d 599 (1992).
       16   BLACK'S LAW DICTIONARY 35(10th ed. 2014).

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No. 75345-2-1/7

       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."18 The first step is the

Department's revocation of the driver's license.20 If the driver objects, the

hearing is the second step.21 Any appeal to the superior court is step three.22

       It is undisputed that step one of the process in this case—the notification

of revocation---occurred prior to the September 26, 2015 effective date of the

statutory affirmative defense. This was the triggering date for the use of that

defense.




       17 See     CR 3(a).
       18 94 Wn. App. 306, 310, 972 P.2d   491 (1999).
       18   Id.
       28   Id.
       21   Id.
       22   Id.

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No. 75345-2-1/8

       Soushek relies on State v. Pillatos as support for his argument that the

triggering event must be the hearing.23 His reliance is misplaced.

       In Pillatos, the supreme court addressed statutory amendments to the

Sentencing Reform Act that provided new procedures for juries to find facts

justifying exceptional sentences if "[a]t any time prior to trial or entry of the guilty

plea," the State gives notice it is seeking an exceptional sentence.24 The

supreme court determined that application of the statutory amendment to

defendants who had yet to be sentenced was not retroactive because the

amendment expressly provided that trial or entry of the guilty plea is the

triggering event, not commission of the underlying crime.25

       Here, there is no similar language in the SOTR amendment expressly

providing that the triggering event is the hearing.26 Nowhere does the statute use

the word "hearing." Thus, that case is distinguishable.

       Moreover, in Pillatos, the amendments did not change the legal

consequences attached to any prior event such as commission of the crime but

instead constituted a procedural change.27 The supreme court noted that before

the amendment, a defendant already knew he or she was subject to exceptional




       23 159 Wn.2d       459, 468, 150 P.3d 1130(2007).
       24   Id.
       25   Id. at 471.
       26 See     id.; RCW 46.20.504(2).
       27   Pillatos, 159 Wn.2d at 470, 472.

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No. 75345-2-1/9

sentencing—the only difference was a change in the procedure for imposing an

exceptional sentence.28

       This case is distinguishable from Pillatos because here the SOTR

amendment is a substantive change, not a procedural one. It changed the legal

effect of Soushek's prior act of exercising control over a vehicle while intoxicated

by allowing him to raise an affirmative defense previously unavailable in a license

suspension/revocation proceeding.29

       Soushek next argues that even if application of the SOTR affirmative

defense is retroactive, it nonetheless applies in his case because the amendment

is remedial. We again disagree.

       The presumption that a statutory amendment operates prospectively is

"overcome only when the legislature explicitly provides for retroactive application

or the amendment is curative or remedial."39 "A remedial change relates to

practices, procedures, or remedies without affecting substantive or vested

rights."31




        28   Id. at 472.
        29   RCW 46.61.504(2).
        39   Flint, 174 Wn.2d at 546.
        31   Id.

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No. 75345-2-1/10

       Here, the legislature did not explicitly provide for retroactive application.32

Soushek does not argue otherwise. Moreover, the amendment to RCW

46.61.504 did not correct or clarify an ambiguous statute so it is not curative.33

       As previously stated, the SOTR amendment was a substantive change in

the law because it made the SOTR affirmative defense available in administrative

license revocation proceedings. It affects the substantive rights of a person

subject to license revocation because successfully raising and proving the

affirmative defense will allow that person to avoid the civil consequences of the

arrest. Again, Soushek does not argue otherwise.

       Soushek does argue that the SOTR amendment is remedial because

there is no vested right to rely on a statutory defense until the trial or hearing. He

relies on Godfrey v. State, as support for his position.34 But that reliance is

misplaced.

       In Godfrey, the legislature passed a statute removing the common law bar

to recovery in a negligence action when the defendant establishes contributory

negligence.35 The supreme court considered the statute to be a remedial change

that did not affect any vested rights and applied it retroactively to pending

negligence cases.36


       32   RCW 46.61.504(2); Laws of 2015, 2d Spec. Sess., ch. 3, §24.
       33 SeeFormer RCW 46.61.504(2014)(amended by Laws of 2015, 2d
Spec. Sess., ch. 3, §24); Flint, 174 Wn.2d at 546.
       34 84 Wn.2d    959, 530 P.2d 630 (1975).
       35   Id. at 964-65.
       36   Id. at 962-68.

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No. 75345-2-1/11

       In deciding that the statute was remedial, the supreme court noted that the

statute did not create or abolish a statutory defense or change liability for the

consequences of negligence.37 Instead, the statute altered the remedy

associated with the existing defense of contributory negligence.38

       In contrast, the SOTR amendment does more than just alter a remedy. It

created a substantive change in the law because it provides a new statutory

affirmative defense to revocation or suspension of a license. Such defense was

simply not available other than in a criminal prosecution before the amendment.

Therefore, the SOTR amendment is not remedial and it does not apply

retroactively.

       To summarize, the statutory amendment providing that the SOTR

affirmative defense is available in a license suspension or revocation proceeding

is prospective and became effective on September 26, 2015. The triggering

event for this amendment's application was the notification of license revocation

that occurred before the effective date of the statute. And this statute is not

remedial. Accordingly, Soushek fails in his burden to show that this statute

applies to him.

                                OTHER MATTERS

       Soushek also argues that the hearing officer erred by characterizing the

SOTR affirmative defense as a challenge to whether the police officer had

probable cause to arrest him. We agree, but hold that the error was harmless.


       37   Id. at 963, 965.
       38   Id. at 963.

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No. 75345-2-1/12

       The SOTR affirmative defense is not relevant to the determination of

probable cause.39 It is only relevant after the Department has determined that

the officer was justified in arresting the driver and after the Department

determines that the remaining elements required for license suspension or

revocation have been established.40

       Because Soushek does not challenge the Department's determination that

the officer was justified in arresting him, any error by the hearing officer in

considering the SOTR affirmative defense as a challenge to probable cause was

harmless. Likewise, because the SOTR affirmative defense was not available to

Soushek as a matter of law, any error by the hearing officer in failing to consider

whether Soushek adequately proved that defense was also harmless.41

       We affirm the order of suspension.




WE CONCUR:




       39 State   v. Reid, 98 Wn. App. 152, 162, 988 P.2d 1038(1999).
      40 RCW 46.20.308(7); see State v. Votava, 149 Wn.2d 178, 187-88, 66
P.3d 1050 (2003).
        See Wallace Real Estate Inv., Inc. v. Groves, 72 Wn. App. 759, 771,
       41
868 P.2d 149, aff'd, 124 Wn.2d 881, 881 P.2d 1010(1994).

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