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Are Washington DUI blood test results admissible in a Department of Licensing hearing?

Posted by Brian C. Zuanich | Jun 24, 2019 | 0 Comments

In Washington, driving is considered a privilege, not a right. That probably seems odd to most people. No one really thinks of driving like going on a Hawaiian vacation, but under the law, that's exactly how it's treated. Something you that you earn, not something that you're entitled.

That's why, if you're arrested for driving under the influence (DUI) in Washington, the Department of Licensing (DOL) will suspend your driver's license immediately. It doesn't matter if the State hasn't charged you with a crime yet, and it doesn't matter if a jury ultimately finds you not guilty of DUI. DOL's administrative suspension action operates independently of—and is completely separate from—the criminal process.  

If you're facing administrative suspension, however, not all is lost, because you can challenge your suspension. In Washington, you have 7 days from the date of your suspension notice to request a formal administrative hearing to challenge your suspension.

That's what Sukhjit Singh did after he was arrested for DUI following a motor vehicle collision in King County. Following his arrest, Police obtained a search warrant for a blood sample to test Singh's blood for alcohol or drugs. Test results showed his blood alcohol content was 0.20 grams per 100 milliliters—over twice the legal limit for driving in Washington.

1. What rules of evidence apply at a DOL hearing? 

The DOL hearing is sort of like a regular trial—both sides (you and DOL) present evidence, the judge decides what evidence to consider, and the judge makes a decision. But unlike a regular trial, the “judge” is not actually a neutral judge, but rather a hearing officer who works for DOL. (If you're a driver, this isn't ideal, or even close to it, but it's the law).

The hearing examiner in Singh's case, however, did him a big favor, even though it didn't seem like it at first.

Because DOL is the equivalent of a criminal prosecutor at an an administrative hearing, it has the burden to prove a valid license suspension. In a case with blood test results, DOL has to prove that the tests were “performed according to methods approved by the state toxicologist.” These specific methods are detailed in a different administrative regulation, WAC 448-14.

To summarize, WAC 448-14 lays out the proper procedures for collecting, preserving, and testing blood for the presence of alcohol or drugs. For proper preservation, the blood sample collection tubes must be chemically clean and the blood samples must be preserved with an anticoagulant and an enzyme poison to prevent clotting and stabilize the alcohol concentration.

2. DOL has to prove that the State complied with the requirements for preserving a defendant's blood sample before the sample is tested for alcohol 

At Singh's hearing, DOL tried to introduce a compliance certificate showing that the tubes used to collect Singh's blood complied with the WAC, but the hearing examiner excluded it. The certificate wasn't signed under penalty of perjury, which made it inadmissible.

Nevertheless, the examiner upheld the suspension, ruling that the rest of the evidence offered at the hearing was sufficient to show compliance. Included in the evidence admitted was a report of the toxicologist who tested Singh's blood. In it, the toxicologist certified that she complied with all testing procedures under the WAC.

On appeal, the Court of Appeals ruled for Singh. In a nutshell, the Court ruled in Singh v. Department of Licensing, blood testing and blood sample preservation are separate requirements. Evidence of proper testing (per the toxicologist's report) is not necessarily evidence of proper blood preservation. In this case, other than the excluded compliance certificate, DOL offered no other evidence that the blood collection tubes were clean or that they contained the proper enzyme poison and anticoagulants.

In short, a DOL hearing examiner cannot just infer proper blood preservation from proper blood testing. And, of course, excluded evidence doesn't count as evidence.

Therefore, DOL failed to prove that the preservation of Singh's blood sample complied with WAC requirements, and for that reason, DOL did not have the authority to suspend Singh's license. 

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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