                                                                                       D   e! '?
                                                                                             1
                                                                                           ri   D   1   0
                                                                                                                    TEALS
                                                                                      2013 AN 19
                                                                                                                Jim, 8: 3 1
                                                                                      STA E (1
                                                                                                                f!!
    IN THE COURT OF APPEALS OF THE STATE OF
                                                                             WASHII
                                                                                                            T
                                           DIVISION II



ROGER R.MARTIN,
                Respondent Cross Appellant,
                           /                                          No. 41718 9 II
                                                                                - -


       v.

                                                            ORDER PUBLISHING OPINION
STATE OF WASHINGTON DEPARTMENT
OF LICENSING,
                Appellant Cross Respondent.
                          /



       THIS MATTER came before this court on the motion of appellantcross respondent,
                                                                     /

State of Washington Department of Licensing,requesting that we publish the opinion filed in

this court on April 30, 2013. The respondent cross appellant has filed a response,requesting that
                                             /

appellantcross respondent's motion be denied. Upon consideration the court has determined
          /

that the opinion in this matter satisfies the criteria for publication. It is now

       s
       the_
       ORDERED,_ pinion'finalparagraph reading:
              o
              that_

               A majority of the panel having determined that only the foregoing portion of
        this opinion will be printed in the Washington Appellate Reports and that the
        remainder shall be filed for public record in accordance with RCW 2.6.it is so
                                                                           040,0
        ordered.


is deleted. It is further


        ORDERED, that this opinion will be published.

        DATED, this /  o. y
                        a          of               2013.



                                                                        CHIEF       JUDGE'.
                                                                                                     F
                                                                                               COLURT OF APPtAL5
                                                                                             2013 APR 33
                                                                                                         AM 8:36
                                                                                             S TAr4k WII GT
                                                                                                     ,
                                                                                             BY




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                 DIVISION II



      ROGER R.MARTIN,
                         Respondent/Cross Appellant,                          No. 41718 9 17
                                                                                        - -


               V.
                                                                      UNPUBLISHED OPINION
      STATE OF WASHINGTON DEPARTMENT
      OF LICENSING,
                         Appellant/Cross Respondent.


               VAN DEREN J. —      The State appeals the superior court's order reversing the Washington

      State Department of Licensing's Department) decision to suspend Roger Martin's personal
                                        (
j-:   driver's license and disqualify hiscommercial driver's license CDL)_._ argues that the-
                                      _                              _( The State        _
      implied consent warnings Martin received 'were accurate and not misleading and that Martin did
      not prove that the warnings prejudiced him. Martin cross appeals the superior court's order,
      arguing that WAC 308 103- 10),
                           - 070( which requires a mandatory continuance of the
      Department's hearing if a subpoenaed officer does not appear and the licensee has a CDL,
      violates due process and equal protection because it tuifairly burdens drivers who hold CDLs.
      Relying on our recent decision Lynch v..ofLicensing, 163 Wn. App. 697,262 P3d
                                            Department
      65 (2011)and Division One's decision Allen v. Department ofLicensing, 169 Wn.App. 304,279
      P. d 963 (2012), hold that the implied consent warnings given to Martin were not inaccurate
       3             we
                         and that Martin has not shown actual   prejudice.   We also hold that Martin waived
       or   misleading
No. 41718 9 II
          - -


the right to a hearing within 60 days under RCW 46. 0. that WAC 308 103- 10) .
                                                308( )
                                                   8
                                                   2 and            - 070(
does not violate due process or equal protection as applied in this case. Accordingly,we affirm

the Department's suspension of Martin's personal driver's license and disqualification of his
CDL.

                                                 FACTS


       In the early evening of September 27,2009, Washington State Patrol Trooper Jeffrey
                                                                   -
Street arrested Martin for driving his personal vehicle while under the influence of alcohol

DUI). the jail,Street read Martin the implied consent warnings from the "mplied Consent
    At                                                                  I
Warnings for Breath"form in the Washington State DUI arrest report packet. The implied
consent warnings state:

                                  Warning! You are under arrest for:

        RCW 46. 1.or RCW 46. 1.
              502 6              504:  6 Driving or being in actual physical control of
        a motor vehicle while'under the influence of intoxicating liquor and/ r drugs.
                                                                            o

        Further, you are now being asked to submit to a test of your breath which consists
        of two separate samples of your breath,taken independently, to determine alcohol
        concentration. - -- - - - - - - - - --
        1. You afe riowadvised -    that you have the
                                           -              righf* orefuse this breath test arid that
                                                               t   -                      ;-    -
            if you refuse:
                 a)Your driver's license, permit, or privilege to drive will be revoked or
                 denied   by the Department ... for at least one year; and
                 b)Your refusal to submit to this test may be used in a criminal trial.
        2. You are further advised that if you submit to this breath test, and the test is
           administered, your driver's, license, permit, or privilege to drive will be
            suspended, revoked, or    denied   by the Department ... for at least ninety days if
            you are:
                 a) twenty one or over and the test indicates the alcohol concentration
                  Age        -
                  of your breath is 0.8 or more, or you are in violation of RCW
                                     0

 1 Former RCW 46. 0.2008)was in effect at the time of Martin's DUI arrest. Since then,the
                  308 (
                     2                                    -
 legislature has amended RCW 46. 0.three times. None of the amendments involved
                                308 2
 substantive changes affecting our analysis. Therefore, we cite to the current version of the
 statute.


                                                      2
No. 41718 9 II
          - -



                    502,
                    46: 1.driving under the influence, or RCW 46. 1.physical
                      6                                       504,
                                                                6
                    control of a vehicle under the influence; or

       3. If your driver's license, permit, or privilege to drive is suspended, revoked, or
          denied, you may 'be eligible to immediately apply for an ignition interlock'
          driver's license.
       4. You have the right to additional tests administered by any qualified person of
          your own choosing.

Clerk's Papers (CP)at 42 (capitalization omitted).Although not read aloud to Martin, the form

also .contained the following warning regarding a commercial driver's license:

       For those not driving a commercial motor vehicle at the time of arrest: If
       your driver's license is suspended or revoked, your commercial driver's license, if
       any, will be disqualified.

CP at 42 ( apitalization omitted).
         c

       Martin signed the form acknowledging that he had read the above statements or had had

the above statement read to him. Martin did not express any confusion regarding the implied

consent warnings, and he submitted to two breath tests that measured his blood alcohol' level

above the legal limit to drive.

       The Department notified Martin that his personal driver's license would be suspended for .

90 days effective November 27,2009, for " eing in physical control or driving under the
                                        b

influence of alcohol or any drug ( CW 46. 0.CP at 89. The Department also notified
                                 R    3101)."
                                        2

him that his CDL would be disqualified for one year effective November 27,2009. Martin

requested an administrative hearing to contest the Department's proposed suspension and

disqualification.

        The original hearing was scheduled for November 24,2009, within 60 days of Martin's

arrest, but Martin's counsel requested a continuance and waived the requirement that the hearing

be set within 60 days. The hearing was continued to December 28; at Martin's request, the

                                                    3
No. 41718 941
          -


hearing officer issued a subpoena for Street, the arresting officer,to appear by telephone at the
hearing.

       On December 28,2009, the hearing officer convened the hearing as scheduled, but Street

failed to appear. Based on Street's failure to appear, and citing Lytle v. Department ofLicensing,
94 Wn.App. 357,361 62,971 P. d 969 (1999),
                   -       2             Martin moved to exclude the DUI arrest report
from evidence and to dismiss the Department's action against him. Initially,the hearing officer

orally granted Martin's motion to dismiss and cancelled the Department's suspension order. But
shortly thereafter on the same day,the hearing officer reconvened the hearing and ruled that her
earlier dismissal was improper because Martin had a CDL,and WAC 308. 03.
                                                                070( 0)
                                                                   1
                                                                   1    requires

hearing officers to continue a hearing if a law enforcement officer who was subpoenaed as a
witness fails to appear and the licensee holds a CDL. Over Martin's objections,the hearing
officer vacated her prior ruling, entered a continuance, and rescheduled the hearing for January
25,2010.

        At the January 25 hearing, Street appeared and testified consistent with his arrest report,

       the lieafirig officer admitted as evidence:.
                                                  Martin argued'tliat due required the
hearing officer to dismiss the action on the initial hearing date in December because Street failed
to appear. Martin also argued that the breath test results should be excluded because the
misleading implied consent warnings deprived him of an'pportunity to make a knowing and
                                                      o
 intelligent decision about whether to submit to the breath test.

        The hearing officer found that Street "informed [Martin] ofthe implied consent rights
 and warnings"and that Martin " xpressed no confusion regarding these implied consent rights
                              e
 and warnings and signed the form."CP at 55. The hearing officer concluded that (1)
                                                                                  the
 continuance was required because Martin held a CDL, 2)
                                                     ( Martin had,the opportunity to cross-
                                                  0
No. 41718 9 II
          - -


examine Street when he appeared for the rescheduled hearing,3) s due process rights
                                                            *( Martin'

were not violated, 4) evidence established that Martin was properly advised of the implied
                   ( the
consent warnings required by RCW 46. 0. (5)
                                 308,
                                   2 and there was no evidence indicating that
Martin's decision about taking the breath test was prejudiced by the warnings he received. The

hearing officer sustained the Department's suspension ofMartin's personal driver's license and
disqualification of his CDL. The Department issued a final order stating that Martin's privilege
to drive was suspended for 90 days effective February 12, 2010. The Department also sent
notice to Martin that his CDL was disqualified for one year effective February 12, 0 10.
                                                   -                             2

          Martin appealed the Department's orders to the superior court. He argued that (1)
                          -                                                               the
hearing officer erred by denying his motion to suppress evidence and dismissed the action when
Street failed to appear at the initial hearing; 2)
                                                ( WAC 308 -103 -070( 0),. required the
                                                                   1 which
continuance, is unconstitutional because it violates due process and equal protection; and (3)

Martin was denied the opportunity to make a knowing and intelligent decision regarding
submission to the breath test because he was inaccurately advised about the resulting

disqualificationofhis CDL:: superiof courtreversed tlieDepartment's suspension
                         The         "              -
disqualification orders.


2
  Although Martin argued that the implied consent warnings were inaccurate, misleading, and/or
inappropriate, the hearing officer deemed that issue outside the scope of the administrative
hearing because the Department has no authority to decide the constitutionality of the law it
 administers.

 3
     The superior court's order provides that its reversal of the hearing officer is "based on the
 errors   of law   assigned   in ...   Martin's Notice of Appeal."CP at 163. In his cross motion for
 discretionary review, Martin stated that notwithstanding the superior court's general reference to
 the assignment of errors in his notice of appeal,the superior court reversed the hearing officer on
 the implied consent deficiency and ruled adversely to Martin on the constitutionality of WAC
 308 - 103 -070( 0). State confirms that although not reflected in the superior court's order,
               1 The
 the superior court judge "ndicated in his oral ruling that the hearing [officer] did not err in
                          i
                                                         5
No. 41718 9 I1
          - -


       The State filed a timely motion for discretionary review of the superior court's order,

arguing that we should reinstate the Department's orders suspending and disqualifying Martin's
licenses because the implied consent warnings were not misleading. Martin filed a cross appeal

seeking review of the constitutionality of WAC 308 -103 -070( 0). granted discretionary
                                                            1 We
review of those issues. We also granted a stipulated motion to stay the proceedings until our

disposition of Lynch.
                                             ANALYSIS


        The State appeals the superior court's ruling that the implied consent warnings given to

Martin were misleading. Martin appeals the superior court's refusal to find WAC 308 103-
                                                                                    -

070( 0),
   1 which required the hearing officer to continue the hearing when the subpoenaed officer
did not appear, unconstitutional.

I.      IMPLIED CONSENT WARNINGS UNDER RCW 46. 0.
                                           3 08
                                             2

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

308(
46. 0.
   9 Cannon
   2 ); v. Dep't ofLicensing,147 Wn. d 41,48,50 P. d 627 ( 002).We review
                                   2             3       2      "
ariadministrativedeci5iorisucliasahcenserevocationfrom thesamepositzorias t - superior -
      -                                                                     e

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

w] review administrative order to determine whether the Department committed any
 e
errors of law, and we uphold findings of fact supported by substantial evidence."Lynch, 163

Wn.App. at 705 (citing RCW 46. 0.The validity of implied consent warnings is a
                           308(
                              9
                              2 )). "

question of law that we review de novo."
                                       Lynch, 163 Wn. App. at 705.



reconvening the hearing, vacating her order of dismissal, and continuing the hearing to allow the
trooper to appear."Br. of Appellant at 7 n. . Neither party provided a transcript of the superior
                                           2
court proceeding. Both parties focus part of their arguments on whether WAC 308 103- 10)
                                                                                    -     070(
 is constitutional; thus we address it as a matter of public interest.
                                                    6-
No. 41718 9 11
          - -


        We review the implied consent warnings provided to Martin to ensure that the arresting
officer provided all the required warnings and that they were not inaccurate or misleading.
Lynch, 163 Wn. App. at 706. "` warnings must permit someone ofnormal intelligence to
                            The
understand the consequences of his   or   her actions. "'   Lynch, 163 Wn. App. at 706 (quoting Jury

v. Dept ofLicensing, 114 Wn.App. 726, 731, 60 P. d 615 (2002)).
                                               3
       Martin contends that the implied consent warnings were misleading because they implied
a lesser sanction to his commercial driving privilege than is mandated by law. Specifically,

Martin contends that he was "misled because the 90 day language infers that any suspension

could be as little as that, when in reality his CDL would be disqualified for a minimum of one

year."Br. of Resp't at 6.

       We recently rejected Martin's argument in Lynch, where the arresting officer provided
the same warnings that Street provided to Martin:

               Lynch argues that the warnings she received falsely encouraged her to
        submit to the breath test by implying that her CDL would be disqualified for the
        same period as her personal driver's license suspension or revocation, namely, 90
        days if. f-ailed the breath test and 1 year if she refused to take the test. Lynch
                she
        points out' hat RCW 46: 5:a driver's CDL is not less
                     t              090;   2                                               "
        than one year"if the driver fails the breath test or refuses to take the test. But we
        disagree with Lynch because the warnings provided did not state the duration of
        her CDL disqualification and did not imply that such disqualification would be for
        the same period of time as her driver's license suspension.
                                                  to       Lynch   concerning   potential   CDL
                 The   statement   provided
        disqualification followed the required implied consent warnings, identifying it as
        an additional consequence of having her personal driver's license either
        suspended or revoked. The warning Lynch received was an accurate statement of
        the law concerning CDL disqualification. And the CDL notification referred to
        CDL "disqualification" as opposed to personal driver's license "suspension or
        revocation,"correctly implying that it is a separate consequence. The warnings
        provided were not confusing or overly wordy but, rather, added to Lynch's body
        of knowledge to use in deciding whether to take the breath test or refuse it.
               We hold that a person of normal intelligence, if provided the warnings
        read to Lynch, would not be -led to believe that the CDL disqualification ...

                                                       7
 No. 41718 9 II
           - -


         would last only as long as the driver's license suspension or revocation. The
         warnings permitted Lynch to ask for further details, which she declined to do.

  163 Wn.App. at 709. And Division of this court agreed with this analysis'and conclusion in
 Allen, 169 Wn.App. at 310.

         Martin,like Lynch,did not ask for clarification of the warnings. Lynch, 163 Wn. App. at
                            ,

  709 10. We held in Lynch, under identical circumstances, that the implied consent warnings (the
      -

  same ones provided to Martin)would not lead a person ofnormal intelligence to believe that the

  CDL disqualification would last only as long as the driver's license suspension. Lynch, 163 Wn.

  App. at 709. Thus, we reject Martin's contention that the implied consent warnings provided to
  him were misleading.

         Martin also contends that that he was prejudiced because the warnings deceived him

  about the consequences of his choice. Martin's claim of actual prejudice is not well taken
  because he received accurate warnings. "'[
                                         A]  showing of actual prejudice to the driver is

  appropriate in a civil action where the arresting officer has given all of the warnings, but merely
failed to do   so   in   a   100-ercent accurate manner.'_Lynch,163_ n. App. at 710 ( lteration and
                                p                          "_      W                a

  emphasis in original)quoting Thompson v. Dep't ofLicensing, 138 Wn. d 783,797 n. ,982
                       (                                            2            8
  P. d 601 (1999)). also considered Martin's argument regarding actual prejudice in Lynch:
   2             We
                    We hold that implied consent warnings that are neither inaccurate nor
         misleading do not result in prejudice to the driver,in civil proceedings. Because
         the warnings here were accurate and not misleading, and Lynch confirmed to the
         arresting officer that she understood the warnings, her claim of actual prejudice in
          the civil proceedings fails.

  163 Wn.App.. 711. Again,Martin received the same implied consent warnings as
             at

  Lynch and confirmed that he understood the warnings. Lynch, 163 Wn.App. at 701 02.
                                                                                 -
  Because those
          -         warnings      were   neither inaccurate   nor   misleading, Martin's   actual   prejudice
    No. 41718 9 II
              - -


    claim fails. See Lynch, 163 Wn. App. at 710 11. Our recent decision in Lynch, 163 Wn.
                                                -

    App. at 709,711 clearly controls here, and Martin has not convinced us to depart from

    Lynch.

             We hold that the warnings provided to Martin were sufficient under RCW
r

    308,
    46. 0. misleading, and not prejudicial to Martin. Accordingly,we affirm the
      2 not

    Department's orders suspending Martin's personal license and disqualifying his CDL and

    reverse the superior court on the implied consent issue.

    II.      WAC 308 103- 10)
                     -  070(

             Martin also asserts that WAC 308 -103-
                                                  violates his
                                                  070( 0):due process and equal
                                                      1

    protection rights. We review Martin's constitutional challenges' de novo. Merseal v. Dept of
    Licensing, 99 Wn.App. 414,420, 994 P. d 262 (2000):
                                        2

             A. Due Process


             Martin argues that his due process right was violated when the hearing officer continued

    the hearing as required by WAC 308 -103 -070( 0)when the arresting officer failed to appear,at
                                                1

    Martin's hearing iif December:.
                                  Wedisagree: Consistent withdue.process;the maxi atory

    continuance provision in WAC 308 103 -070( 0)afforded Martin an opportunity to cross -'
                                     -       1

    examine-the arresting officer during the rescheduled hearing. Martin also alludes to a due

    process violation related to timeliness of the.earing, but the argument is not developed or
                                                  h

    supported; thus,we do not address it.

             Revocation of a driver's license for a statutorily defined cause implicates a protectable

    property interest that must comply with due process."Lytle, 94 Wn. App. at 361. " he State has
                                                                                    T
    the burden of proving the revocation of a person's license complied with due process."Lytle, 94

    Wn.App. at 361. A driver's license may not be revoked without a hearing that satisfies the
                                                      a
No. 41718 9 II
          - -


requirements of due process, including the right to confront witnesses. Flory v. Dep't ofMotor
Vehicles, 84 Wn. d 568, 571; 527 P. d 1318 (1974).Due process requires notice and a
               2                  2                "

meaningful opportunity to be heard."Lytle, 94 Wn. App. at 362.
                                     •

       Martin relies on Lytle, 94 Wn. App. at 363;Mansour v. King County, 131 Wn.App.255,

128 P. d 1241 (2006);, State ex rel. Nugent v. Lewis, 93 Wn. d 80, 605 P. d 1265 (1980)to
     3              and                                    2            2

support his due process argument. But these cases are not helpful to Martin.
       In Lytle,a hearing officer relied on sworn reports of police officers who did not appear at

the hearing. 94 Wn.App. at 362. Division Three of this court held that the license revocation

proceedings violated due process because the licensee was denied an opportunity to cross -
examine the officers who provided evidence against him. Lytle, 94 Wn.App. at 362 63.
                                                                                 -

Likewise, in Mansour, Division One of this court held that due process required that a pet owner

contesting a removal order be able to subpoena witnesses and records that he needed to

effectively cross -examine the State's witnesses. 131 Wn.App.at 268 70.
                                                                    -

       Martin's reliance on Lytle and Mansour is inapposite because Martin received the very

process denied iii Lytle and Mansour.-
                                     Here; WAC 308=03= 10)required the hearingofficer -
                                                  1 070(
to continue the hearing until Martin had an opportunity to cross -examine Street. Unlike in

Mansour, Martin had the ability to subpoena witnesses and records, and he used that power to
subpoena Street. When Street failed to appear,the hearing officer protected Martin's rights by
continuing the hearing and reissuing the subpoena for Street to appear. Although, Street initially
failed to appear at the hearing for which he was subpoenaed, the hearing officer continued the
hearing under WAC 308 -103-070( 0),
                              1 which provided Martin a meaningful opportunity to be
heard, including an opportunity to cross -examine Street.



                                                10
No. 41718 9 II
          - -


         Martin also relies on Nugent, 93 Wn. d at 84, in which our Supreme Court dismissed the
                                            2

case against a criminal defendant and held that the unexcused absence of a subpoenaed witness
at trial is not good cause for a continuance under JCrR 3.8. Martin argues that as in Nugent,
                                                         0
Street's un.
           excused absence is not good cause for a continuance and,thus, the action should have

been dismissed. But the dismissal in Nugent was based on a criminal rule not applicable here.

See Nugent, 93 Wn. d at 83 84.
                 2         -

         Next,Martin alleges that WAC 308 -103 -070( 0)is unconstitutional because it erodes
                                                   1

drivers' due process rights by requiring drivers to "waive [their]right to a timely hearing and a

speedy determination on the issues where [they]have exercised [their]right to confrontation and
the State fails to comply with due process."Br. of Resp't at 16 17. Again,Nye disagree.
                                                                -

          By statute, the hearing shall be    within sixty days following the arrest unless

otherwise agreed to by the Department and the person. RCW 46. 0.WAC 308 103-
                                                          308(
                                                             8
                                                             2 ).       -
070( )
   6 provides that a petitioner is deemed to have waived the statutory requirement that the
hearing be f.ield within sixty days if petitioner requests an action that cannot be accommodated
within the sixt3' Y P eriod.
                da    -()       WAC 308 103 070 10 requires the heariri g o
                                        -   -        q                    officer to continue a" -

hearing in the event a law enforcement officer who has been subpoenaed as a witness fails to
 appear and the petitioner is a holder of a CDL. Further, it provides that a] taken by the
                                                                           "[ ction
 hearing officer to enforce a subpoena issued on the petitioner's behalf is considered to be at the
 request of the petitioner for purposes of WAC 308 103- 6)." 308 103- 10).
                                                   - 070( WAC    - 070(
          Here,Martin requested a hearing and requested that Street be subpoenaed. When Street

 failed to appear,the hearing officer continued the hearing under WAC 308 -103 -070( 0).
                                                                                   1

 4
     Justice Court Criminal Rules (JCrR)were retitled Criminal Rules for Courts of Limited
 Jurisdiction ( rRLJ)in 1987.
              C
                                                  11
No. 41718 9 II
          - -


Martin's counsel had already waived the statutory requirement that the hearing occur within 60

days of arrest by requesting a continuance of the original November 24,2009, hearing to
December 28,2009. Martin's temporary license remained in effect during the continuance. The

hearing officer complied with the applicable administrative and statutory provisions, including
those related to timeliness of the hearings

         Martin alleges that WAC 308 -103 -709( 0)is unconstitutional because it requires drivers
                                              1

to forgo a timely hearing. But he does not cite authority to support this constitutional argument
and, thus, it fails. RAP 10. ( v. Thomas, 150 Wn. d 821, 868 69,83 P. d 970 (2004),
                         a)(State
                           6);
                           3                    2            -      3

abrogated in part on other grounds by Crawford v. Washington, 541 U. .36, 124 S. Ct.354,
                                                                   S               1
158 L.E.2d 177 (2004)holding that inadequate argument or only passing treatment does not
                      (
merit review).Martin has failed to show that his due process rights were violated by the hearing

officer's application of WAC 308 - 103 -070( 0), that WAC 308 - 103 -070( 0)violates due
                                           1 or                         1

process on its face.

         B. Equal Protection

         Martin asserts that ViWAG308:103= 10)'
                                         also violates his riglit ptotectiori "
                                         070(

because " t treats similarly situated drivers disparately without a rational relation to any
        i

legitimate governmental interest."Br. of Resp't at 18. We disagree.
         The Fourteenth Amendment of the United States Constitution and the privileges and

immunities clause of article I,section 12 of the Washington State Constitution guarantee equal

5
    Martin.does not argue that WAC 308 -1.3 - 070( 0),
                                         0       1 which attributes the continuance to the
driver who requested that the officer be subpoenaed, conflicts with or exceeds the Department's
statutory authority under RCW 46. 0.
                                308( 8 which
                                     2 ),requires that hearings be held within 60 days
unless otherwise agreed to by the Department and the driver. Thus, we do not decide whether
 WAC 308 - 103 070 conflicts with RCW 46. 0.We leave that question to a case in which
               -                      308(
                                         8
                                         2 ).
 the issue is squarely presented because the driver had not already waived the 60 day statutory
 hearing requirement.
                                                  12
No. 41718 9 II
          - -


protection of the laws. A party alleging an equal protection violation must establish that the
challenged law treats unequally two similarly situated classes of people. In re Fuel Tax or
Prorate Assessment ofNor Pac Enters.,Inc., Wn. App. 556, 569, 119 P. d 889 (2005).We
                         -               129                       3

employ minimal scrutiny and apply the rational basis test to review government action affecting

disqualification of a commercial driver's license. MerseaZ, 99 Wn.App. at 420 21.
                                                                              -
       Under the rational basis test, a regulation will survive a constitutional challenge if the
                                      "

legislation applies alike to all within the designated class, there are reasonable grounds to
distinguish between those within and those without the class, and the classification bears a
                                                                                Dep't of Soc. &   Health
rational   relationship to   a   legitimate government purpose."Campbell   v.




Servs.,150 Wn. d 881, 900, 83 P. d 999 (2004).,
             2                 3             WAC 103 -070( 0)distinguishes between
                                                         1

commercial drivers and ordinary drivers; it requires a hearing officer to continue a hearing in

which a subpoenaed officer does not appear if the licensee holds a CDL or was driving a
commercial vehicle at the time of the driver's arrest, while a continuance is merely discretionary

if the licensee is an ordinary driver.

           Public safety'is a sufficieiit basis forbetween commercial drivers - the -
                                                                              and ,

general public."
               Merseal, 99 Wn.App. at 422. As the State points out,the mandatory
continuance provision of WAC 308 -103070( 0) commercial drivers is rationally related to .
                                        1 for
protecting the public from the serious risk posed by the operation of commercial vehicles by
impaired drivers. It ensures that a hearing officer will consider the merits of the license
disqualification,rather than allowing dismissal of the action. Because WAC 308 103- 10)is
                                                                               - 070(
rationally related to a legitimate legislative purpose, it withstands rational basis scrutiny and does
 not violate equal protection.



                                                     13
No. 41718 941
          -


       In making his equal protection argument, Martin also contends that different treatment of

ordinary drivers and CDL holders under WAC 308 -103 - 070( 0)removed a critical due process
                                                         1 "

protection from Mr.Martin, and all other CDL holders, simply by virtue of their classification as
such."Br. of Resp't at 19. He characterizes this as disparate treatment under WAC 308 103-
                                                                                      -

070( 0)because it removes procedural due process protections and safeguards for CDL holders.
   1
       But procedural due process protections and safeguards are directed at preventing
erroneous deprivations of rights. Martin does not explain why a regulation that facilitates

hearings on the merits by requiring a continuance to procure a subpoenaed officer,who is then
subject to cross -examination by the licensee, can be fairly characterized as stripping away a
procedural due process protection or safeguard;nor does Martin explain how those arguments
relate to equal protection. The continuance requirement protects the procedural and substantive

safeguard of confrontation and it prevents commercial drivers accused of driving under the
influence from escaping a decision on the merits.

        Relying   on our          decision
                           recent d i        Lynch, 163 Wn. App. at 709
                                              y              pp ,         711 and Division One's


clecisioin Allen; 169 Win. App.at 306,we hold thattheftAplied"
                                      "                       consent warnings      givexi   to   artvi "



were not inaccurate or misleading and that Martin has not shown actual prejudice. We also hold

that WAC 308 103- 10)does not violate due process or equal protection rights.
             -  070(

Accordingly, we affirm the Department's suspension 'of Martin's personal driver's license and




                                                     14.
No. 41718 9 II
          - -


disqualification of his CDL and thereby reverse the superior court's ruling.
       A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record pursuant to RCW 2.6.it is
                                                                                 040,
                                                                                   0
so ordered.



                                                      Vg, .
                                                  VAN DEREN, J.




                                                 15
