                                                                                             COURT OP APPEALS
                                                                                                  DIVISION II
                                                                                           2E115 HAY 1 2   AM 8: 4 n

      IN THE COURT OF APPEALS OF THE STATE OF WA-                                                 ul`''      rTON




                                          DIVISION II


    JAMES WATKINS,                                                            No. 45327 -4 -II


                                Respondent,


          v.



    STATE OF WASHINGTON;                                                  PUBLISHED OPINION
    DEPARTMENT OF LICENSING,


                                Petitioner.


         WoRSwICK, J. —   James Watkins was arrested for driving under the influence of alcohol

and the Department of Licensing notified him that it would be revoking his driving privileges for

refusing to take a breath test. After the Department' s hearings examiner ruled that Watkins' s

privileges should be revoked, the superior court reversed the ruling because the arresting officer

did not certify his report. The Department appeals, arguing that a second officer' s certified

report gave-the Department jurisdiction under the implied consent statutes to revoke Watkins' s


driving privileges, that the arresting officer' s uncertified arrest report was admissible because it

accompanied the certified report, and that admitting the arresting officer' s uncertified report did

not violate due process. We agree with the Department, reverse the superior court, and affirm


the hearing examiner' s ruling sustaining the revocation of Watkins' s driving privileges.




1
    Former RCW 46. 20. 308 ( 2012) ( amended        Laws          2012,   ch. 80,   § 12); see also Didlake v.
                                               by            of

Wash. State,      Wn.App. ,       345 P. 3d 43, 46   n. 13   ( 2015). We refer to the version of former
RCW 46. 20. 308 that was in effect when Watkins requested his administrative hearing on
December 3, 2012.
No. 45327 -4 -II



                                                            FACTS


        Officer Matthew Smith stopped a vehicle being driven by James Watkins. Watkins had

watery and bloodshot eyes and a strong odor of intoxicants coming from his person. After

Watkins refused to submit to field sobriety tests, Officer Smith arrested Watkins for driving

under the influence of alcohol ( DUI).


        Officer Smith transported Watkins to the Fircrest Police Department to meet with


Washington State Trooper Timothy Rushton for DUI processing. Trooper Rushton provided

Watkins with the warnings required by the implied consent statute and asked Watkins whether he

would   take   a   breath test. Former RCW 46. 20. 308 ( 2012). Watkins refused.


        Trooper Rushton submitted a 16 page exhibit to the Department of Licensing. The

exhibit' s first document was Trooper Rushton' s five page certified report. The first page of

Rushton'   s certified report       had   a checked   box    next   to " Refused Test."   Clerk' s Papers ( CP) at 32.


The first page further stated:


        The subject was lawfully arrested. At that time, there were -reasonable grounds to
        believe that the arrested 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 ... .


        After receipt of the warnings required by subsection (2) of RCW 46. 20. 308, a test
        was administered and the results indicated that the alcohol concentration of the
        person' s     breath   or   blood   was   0. 08   or more ....   OR


        After receipt of the warnings required by subsection ( 2) of RCW 46. 20. 308, the
        person refused to submit to a test of his /her blood or breath.




        I certify (    or   declare)
                                   penalty of perjury ...
                                          under           that the foregoing and the
        accompanying reports /copies of documents and the information contained
        therein      are   true, correct, and     accurate.
No. 45327 -4 -II



CP   at   32 (   emphasis added).      Trooper Rushton signed the first page at the bottom. The exhibit


contained additional documents accompanying Trooper Rushton' s certified report, including

Officer Smith' s uncertified arrest report.


           After the Department notified Watkins it would be revoking his driving privileges for one

year for driving under the influence, Watkins requested and received an administrative hearing.

Trooper Rushton testified at the hearing.

           The hearing examiner concluded that Trooper Rushton' s certified report gave it

jurisdiction under the implied consent statute to revoke Watkins' s driving privileges and that the

entire exhibit was admissible, including Officer Smith' s uncertified arrest report. The hearing

examiner affirmed the Department' s revocation of Watkins' s driving privileges, ruling that

Officer Smith had a legal basis to pull over Watkins and had probable cause to arrest Watkins.


The hearing examiner also ruled that Officer Smith had reasonable grounds to suspect Watkins

was driving under the influence and that Watkins refused to submit to a breath test after

receiving proper warnings.


           Watkins appealed the hearing examiner' s decision to the superior court. The superior

court reversed the hearing examiner, ruling:

           The Department erred in relying upon [ Officer Smith' s] unsworn [ and uncertified]
           report   to   establish   jurisdiction   and probable cause   for the stop   and arrest. [   Officer

            Rushton] could not properly certify another officer' s unsworn [ and uncertified]
           report under penalty of perjury. The Department' s action is hereby reversed.

CP   at   71.    We granted discretionary review. Ruling Granting Review, Watkins v. Dep' t of

Licensing, No. 45327 -4 -II, at 9 ( Wash. Ct. App. Feb. 7, 2014).




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No. 45327 -4 -II



                                                         ANALYSIS


         The implied consent statute governs our review of the Department' s order. Former RCW


46. 20. 308( 9) ( October 1, 2012);           Cannon v. Dep' t ofLicensing, 147 Wn.2d 41, 48, 50 P. 3d 627

2002).    The implied consent statute generally provides that a driver is deemed to have consented

to a blood or breath test if at the time of his arrest, the arresting officer has reasonable grounds to

suspect that the driver was operating a motor vehicle under the influence. Former RCW

46.20. 308. If the driver refuses to take the test after receiving a series of required warnings

informing him of his rights, then the person' s driving privileges may be revoked. State v.

Rogers, 37 Wn.        App.       728, 731, 683 P. 2d 608 ( 1984). The purpose of the implied consent statute


is to "` insure     swift and certain punishment          for those    who   drink   and   drive, "' and " free


Washington roads of drivers who take the wheel under the influence of alcohol or controlled


substances."        State   v.   Vasquez, 148 Wn.2d 303, 315, 59 P. 3d 648 ( 2002) (              quoting former RCW

46. 20. 308 Historical           and   Statutory Notes, " Legislative. finding, intent -1983 ch. 165" at 387).

         We review the Department' s administrative decisions " from the same position as the


superior court."       Clement v. Dep' t ofLicensing, 109 Wn. App. 371, 374, 35 P. 3d 1171 ( 2001).

We review errors of law de novo and findings of fact for substantial evidence. See Lynch v.


Dep' t ofLicensing, 163 Wn. App. 697, 705, 262 P. 3d 65 ( 2011).

         The issue on appeal concerns interpretation of the implied consent statute. Interpretation


of a statute   is   a question of        law that   we review   de   novo.   Grey v. Leach, 158 Wn. App. 837, 844,

244 P. 3d 970 ( 2010).            When interpreting a statute, we seek to ascertain the legislature' s intent.

Dep' t   of Ecology     v.   Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002). Where a




                                                                 4
No. 45327 -4 -II



statute' s meaning is plain on its face, we give effect to that meaning as expressing the

legislature'   s   intent. 146 Wn.2d at 9 - 10.


         I. THE DEPARTMENT' S JURISDICTION To REVOKE WATKINS' S DRIVING PRIVILEGES


         The Department argues that although Trooper Rushton was not the arresting officer, his

certified report gave the Department jurisdiction to revoke Watkins' s driving privileges. We

agree.



         Former RCW 46. 20. 308 sets forth the procedure that law enforcement and the


Department must follow before revoking driving privileges, stating in part:

                      2) The test or tests of breath shall be administered at the direction ofa law
         enforcement officer having reasonable grounds to believe the person to have been
         driving or in actual physical control of a motor vehicle within this state while under
         the influence of    intoxicating liquor or any drug ....      The officer shall warn                          the
         driver, in    substantially the following language, [ the following warnings]. .


                      6) If, after
                              .    arrest and after the other applicable conditions and requirements
         of   this   section   have been    satisfied ...      the person refuses to submit to a test, the

         arresting officer or other law enforcement officer at whose direction any test has
         been given, or the department, where applicable, if the arrest results in a test of the
         person' s blood, shall:


                      e) Immediately notify the department of the arrest and transmit to the
         department ...     a sworn report or [ certified] report ... authorized by [ former] RCW
         9A.72. 085 [ 1981][ 2] that states:
                      i) That the officer had reasonable grounds to believe the arrested 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 ... .
                      ii) That   after receipt of   the     warnings required             by   subsection ( 2) of this
         section     the   person refused   to   submit   to   a   test of   his   or   her blood   or   breath ...   and

                      iii) Any other information that the director may require by rule.[3'

2 Former RCW 9A.72. 085 provided that where the law requires or allows a fact to be supported
by a sworn written statement, an unsworn written statement that is certified according to former
RCW 9A.72. 085 will suffice.


3 The parties did not argue, either here or at the superior court, that Department rules required an
officer to provide additional information in the certified report.



                                                                   5
No. 45327 -4 -II



                   7) The department of licensing, upon the receipt of a sworn report or
         certified] report ....   under subsection ( 6)( e) of this section, shall suspend, revoke,
        or deny the person' s license, permit, or privilege to drive.

Emphasis added).


        The implied consent statute requires the Department to receive a sworn or certified report


before revoking a person' s driving privileges. Former RCW 46.20. 308. Under former RCW

46. 20. 308( 7), a sworn or certified officer' s report in compliance with former RCW


46. 20. 308( 6)( e) was a jurisdictional prerequisite to the Department' s power to revoke driving

privileges.   Broom   v.   Dep 't of Licensing, 72   Wn.   App. 498,   502, 865 P. 2d 28 ( 1994); Martinez v.


Dept of Licensing, 70 Wn.         App.   398, 401, 854 P. 2d 43 ( 1993).   But as Division One of this


court stated in Broom:


        We hold that it is the existence of a certified report, not its contents, that confers
        jurisdiction on [ the Department] and that the use of summary language in a report
        is adequate, so long as it sets forth the information required by RCW 46. 20.308( 6).
        In holding that the contents of a report are not the basis of [the Department' s]
        jurisdiction, we do not suggest that a report containing a significant variation from
        or an omission of the information required under RCW 46. 20. 308( 6) would be
        adequate to confer jurisdiction. We hold only that the use of summary language
        will not defeat jurisdiction where the summary language accurately conveys the
        information required under the statute.


72 Wn. App. at 503 -04.4

        Under former RCW 46.20. 308' s plain meaning, any officer " having reasonable grounds

to believe the   person    to have been   driving ... under the influence" could direct the

administration of a   breath test. Former RCW 46. 20. 308( 2).          Providing the required warnings and




4 It is clear from Broom' s language that the court was discussing the certified report identified in
subsection ( e) of former RCW 46. 20. 308( 6).


                                                        6
No. 45327 -4 -II



complying with a defendant' s refusal to take a breath test constituted " administration" of a breath

test,   even where   the   person never   actually took   a   breath test. See former RCW 46.20. 308( 2), ( 6).


          Where such an officer had directed the administration of a breath test and the person


refused to submit to the breath test, that officer could provide the certified report required by

former RCW 46. 20. 308( 6)(      e).   Former RCW 46. 20. 308( 6)( e)( i) required the report to state


  t ]hat the officer had reasonable grounds to believe the arrested person had been driving .. .

under    the influence." ( Emphasis       added).   But former RCW 46. 20. 308 did not require the report


to explain those
           .     reasonable grounds, and we do not analyze the report' s substance to determine


the reasonableness of the officer' s grounds. See Broom, 72 Wn. App. at 503 -04.

          Here, Trooper Rushton directed the administration of Watkins' s breath test and provided


a certified report to the Department. Trooper Rushton' s certified report met the requirements of

former RCW 46. 20. 308( 6)( e) by stating that there were reasonable grounds to believe Watkins

had been driving under the influence and that after receipt of the warnings required by the

implied consent statute, Watkins refused to submit to a breath test. Thus, we hold Trooper


Rushton' s report was sufficient to give the Department jurisdiction to revoke Watkins' s driving

privileges.



                II. ADMISSIBILITY OF OFFICER SMITH' S UNCERTIFIED ARREST REPORT


          The Department argues that Officer Smith' s uncertified arrest report was admissible at


Watkins' s hearing because it accompanied Trooper Rushton' s certified report. Watkins argues

that admission of Officer Smith' s uncertified arrest report violated former RCW 46. 20. 308 and

deprived him of due process. We agree with the Department.




                                                          7
No. 45327 -4 -II



A.       Former RCW 46.20. 308


         The Department argues that Officer Smith' s uncertified arrest report was admissible


under   former RCW 46. 20. 308. We agree.


         Our Supreme Court has held:


         At the hearing, the law enforcement officer' s sworn [ or certified] report is prima
         facie evidence of a valid arrest and compliance with the requirements of the implied
         consent       statute.     The        sworn [    or   certified]    report     and   any     other    evidence
         accompanying it, as well as certifications authorized by the criminal rules for courts
         of limited jurisdiction, are admissible at the hearing without further evidentiary
        foundation.


Cannon, 147 Wn.2d           at   51 (   emphasis added) (       internal citation omitted); see also Ingram v. Dep' t

of Licensing, 162 Wn.2d 514, 522, 173 P. 3d 259 ( 2007). WAC 308 - 103 - 120( 1) states:


         The hearing officer shall rule on the admissibility and weight to be accorded to all
         evidence submitted at the hearing. Evidence, including hearsay evidence, is

         admissible if in the judgment of the hearing officer it is the kind of evidence on
         which reasonably prudent persons are accustomed to rely on in the conduct of their
         affairs.



See   also   Ingram, 162 Wn.2d            at   525. "   Hearing officers are directed to liberally construe

admissibility to ` insure        swift and certain punishment               for those   who   drink   and   drive. "' 162


Wn.2d at 523 ( quoting Vasquez, 148 Wn.2d at 315).

         Here, Officer Smith' s uncertified arrest report accompanied Trooper Rushton' s certified


report. Thus, Officer Smith' s uncertified arrest report was " admissible at the hearing without

further evidentiary foundation." Cannon, 147 Wn.2d                          at   51. Although Officer Smith' s


uncertified arrest report constituted hearsay, this hearsay was admissible because reasonably

prudent persons are accustomed to rely on this kind of evidence in the conduct of their affairs.

See. State    v.   Patterson, 37 Wn.           App.   275, 277 -78, 679 P. 2d 416 ( 1984) ( when            determining

whether      to issue a   warrant, "     a magistrate may rely upon an affidavit or testimony of a police


                                                                   8
No. 45327 -4 -II



officer even        though it       relays     hearsay   information from        other officers ").   Thus, the hearing

examiner did not err by admitting Officer Smith' s uncertified arrest report.

B.           Due Process


             The Department argues that admitting Officer Smith' s uncertified arrest report did not

deprive Watkins of due process. We agree.


             We review constitutional issues de novo. See Durland v. San Juan County, 182 Wn.2d

55, 70, 340 P. 3d 191 ( 2014). The State must provide due process when it deprives an individual


of   life,   liberty,   or   property. U. S. CONST.             amend.    XIV, § 1; WASH. CONST.         art.   I, § 3. Because


driving privileges are a protected property interest, revoking such privileges must comply with

due process. See Martin v. State Dep' t ofLicensing, 175 Wn. App. 9, 21, 306 P. 3d 969 ( 2013).

             Procedural due process requires providing the litigant with notice and an opportunity to

be heard, which requires providing the litigant an opportunity to confront witnesses against him

or   her. 175 Wn.            App.   at   21.   The State bears the burden of proving due process was provided.

175 Wn. App. at 21.

             When we consider the specific dictates of due process we consider three factors from

Mathews        v.   Eldridge, 424 U. S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976).                        City ofBellevue

v.   Lee, 166 Wn.2d 581, 586, 210 P. 3d 1011 ( 2009). The three Mathews factors                                  are: (   1) the


private      interest that     will      be   affected   by   the   court' s action; (   2) the risk of erroneously depriving a

person of that interest through the procedures used, and the probable value, if any, of additional

or substitute procedural safeguards; and ( 3) the State' s interest, including the function involved

and fiscal and administrative burdens that the additional or substitute procedural requirements


would entail.           Mathews, 424 U. S.          at   335.
No. 45327 -4 -II


          Watkins supports his argument with Nirk v. Kent Civil Service Commission, which


concerned a civil service discharge hearing that resulted in a police officer' s permanent

discharge. 30 Wn.            App.   214, 633 P. 2d 118 ( 1981).       The officer' s counsel requested that the


hearing examiner place the witnesses under oath, but the hearing examiner refused. 30 Wn. App.

at   214 -15.   Division One of this court reversed the police officer' s discharge, holding witnesses

in civil service discharge hearings must be placed under oath. 30 Wn. App. at 217 -19, 221.

While legislative intent provided the primary justification for the court' s holding, it also held that

due process required witnesses to be under oath in civil service discharge proceedings:


           Witness] statements should be under oath even when the testimony is written. Such
          a requirement poses a minimal inconvenience to the administrative body and is
          consistent with the informality of the hearing.

           W] ithout sworn testimony a reviewing court is unable to review the Commission' s
          decision on appeal. In reviewing an adjudicatory administrative decision, a court

          must presume           that the   evidence presented       is truthful....   In the case of unsworn

          testimony, however, the evidence cannot be given the traditional presumption of
          truthfulness and we are, therefore, unable to perform our appellate review function.


              C] onsidering the importance of the oath, the significant interests at stake in a
          discharge hearing, the legislative provision authorizing the administration of oaths,
          and the minimal inconvenience that such a requirement would cause, due process
          requires that witnesses be sworn at a civil service discharge hearing.

30 Wn.     App.      at   219 -21 ( internal   citations omitted).    We hold that considering the Mathews

factors, this case is distinguishable from Nirk.


          First, the private interest affected here was driving privileges. While driving privileges

are a protected property interest, they are not equal to an interest in employment because

depriving       an   individual     of employment often "`    call[ s] into question [ the litigant' s] good name,


honor    or   integrity. ' See 30 Wn. App. at 216 ( quoting State v. Civil Serv. Comm' n, 25 Wn. App.

174, 182, 605 P. 2d 796 ( 1980)).



                                                               10
No. 45327 -4 -II



        Second, both the risk of erroneously depriving an individual of driving privileges by

admitting an uncertified arrest report whose accuracy was certified by another officer and the

probable value of excluding such an uncertified arrest report are insignificant. Where one

officer' s certified report declared under penalty of perjury that an uncertified arrest report was

accurate, that uncertified arrest report' s accuracy was supported by a certified report, unlike the

witnesses in Nirk. Furthermore, in hearings to revoke driving privileges, the defendant has the

right to confront officers providing evidence against him by subpoenaing the officer to testify

under oath at the hearing. See Martin, 175 Wn. App. at 21 -22; Weekly v. Dep 't ofLicensing, 108

Wn.   App.   218, 225, 27 P. 3d 1272 ( 2001);   WAC 308 -103 - 140. Thus, the risk of erroneously

depriving an individual of driving privileges by admitting an uncertified arrest report whose

accuracy was certified by another officer, and the probable value of excluding such an

uncertified arrest report, are insignificant.


        Third, considering the State' s interest, Watkins' s argument asks us to require each

witness who provides a statement accompanying an officer' s certified report to certify his or her

own statement. This would place an additional administrative burden on the State, by requiring

the State to obtain a certification from each witness whose statement accompanied an officer' s


certified report. This administrative burden could compromise an integral function of the driving

privileges revocation procedure: rapidly removing intoxicated drivers from the road. See

Vasquez, 148 Wn.2d      at   315.   Thus, the third factor leans in favor of the Department. Applying

the Mathews factors, we hold due process allowed admission of Officer Smith' s uncertified


report in Watkins' s hearing.




                                                      11
No. 45327 -4 -II



        Because Trooper Rushton' s report was sufficient to give the Department jurisdiction to


revoke Watkins' s driving privileges and Officer Smith' s uncertified arrest report was admissible

at Watkins' s revocation hearing, we affirm the hearing examiner' s ruling sustaining the

revocation of Watkins' s driving privileges, which effectively reverses the superior court.




 We concur:

   1

 Bj'rger,R A.C. J.




 Sutton,




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