Department of Licensing (DOL) Administrative Hearings

Whenever a driver is arrested for DUI, there are typically two sides of the DUI case: (1) a criminal charge that is handled through the court system, and (2) an administrative action from the Department of Licensing to suspend or revoke their privilege to drive. The Department of Licensing has jurisdiction to issue an administrative action in any of the following situations:

1. A breath test result where at least three of the four results are 0.08 or above
2. A refusal of the breath test
3. A blood draw with an alcohol level of 0.08 or greater
4. A blood draw with an active THC level of 5.0 nanograms or greater

Whenever the DOL receives notice that a driver falls within one of these categories, they will initiate an administrative suspension or revocation of the driver’s license (or their privilege to drive if they are an out-of-state driver).

However, a driver can contest this administrative action and argue for the dismissal of the action. To do this, the driver must request a hearing within seven calendar days after the date of their incident (or seven calendar days after receiving notice of a suspension following a blood draw). If their arrest occurred prior to midnight and the breath test or refusal occurred after midnight, this seven-day clock begins running from the date of the breath test or refusal. This request can be sent via mail or submitted on the DOL’s website, and it must be accompanied by a $375 payment from the driver (unless the driver is deemed “indigent” and provides sufficient documentation and a supplemental form). This means that if the driver’s request is not postmarked within the seven-day timeframe, their right to contest the action will be waived and their privilege to drive will be automatically suspended or revoked 30 days after the incident date. If a driver misses this seven-day request timeframe, the DOL will only grant a request for a late hearing if there are extraordinary circumstances and reasonable cause to do so.

Once a driver requests a hearing, the DOL then has an obligation to schedule an administrative hearing within 30 business days after the date of request. This is a hearing that takes place over the phone with an Administrative Hearings Examiner. A driver can represent themselves at this hearing or can hire their own attorney to represent them. At this hearing, the Department of Licensing uses a “preponderance of the evidence” standard (i.e., a “more likely than not” traditional), meaning they have a much lower burden of proof than a criminal action. These hearings are governed by RCW 46.20.308 and focus on the following issues:

1. Was there a lawful traffic stop (or other lawful initiation of the contract by law enforcement)?
2. Was there a lawful arrest?
3. Were there “reasonable grounds” for the officer to believe the driver was impaired by drugs or alcohol?
4. Did the officer correctly read the “implied consent warnings” to the driver prior to asking them to submit to a breath test?
a. NOTE: in a blood draw case, the officer is not required to read these warnings. The DOL will assess whether the officer secured the blood sample via a warrant or another exception to the warrant requirement.
5. Did the driver refuse to take the breath test?
6. Was there a breath/blood alcohol level of 0.08 or more or an active THC level of 5.0 nanograms or more? (this includes a showing that all testing was done in accordance with proper statutory protocols).

Unless the driver subpoenas to the law enforcement officer at least five business days prior to the hearing, the DOL will assess these elements based purely on what is written in the police reports. If the DOL can establish all of the required elements at the hearing by a “preponderance of the evidence,” they will “sustain” the administrative action and suspend or revoke the driver’s license or privilege to drive. This is true even if the criminal charge is amended or even dismissed, as this administrative action is an entirely separate legal proceeding from the criminal side of the case. These administrative hearings are a much more streamlined process than the criminal side of the case, and the licensing actions are upheld in the majority of cases statewide. However, these hearings can have complex procedures, detailed legal arguments and can have significant ramifications for many drivers if the hearing is not handled correctly. Accordingly, it is always in a driver’s best interest to have representation at the hearing by an attorney who is experienced in this specific area of law.