You've been arrested for DUI and you've lost your Department of Licensing (DOL) administrative hearing. Your license is going to be suspended.
Don't lose hope.
In Washington, you have an automatic right to appeal the DOL's decision to suspend your license. This means the appellate court must hear your appeal.
The law governing DOL appeals is found in RCW 46.20.308.
Where do you file your appeal?
You must file your appeal in the superior court in the county where you arrested. For example, if you were arrested for DUI in Seattle, you must file your appeal in King County Superior Court.
What does it cost to appeal?
The standard filing fee in Washington for civil appeals is $230, but some courts charge more. For example, Kitsap County charges $240 and Pierce County charges $290.
(Keep in mind that a DOL hearing is a civil proceeding, even though it directly results from a criminal arrest.)
If you are indigent, you can file a motion asking the superior court to waive your filing fee.
How long do you have to file an appeal?
You must file your notice of appeal within 30 days of the date that the DOL's so-called "final order" is "served." This basically means the date on which you receive the DOL hearing officer's ruling against you.
One crucial thing to keep in mind: This is NOT 30 days from the date your license suspension actually goes into effect, which may be several days if not weeks after the final order is issued,
If you miss the 30-day deadline, you forfeit your right to appeal. No exceptions.
How do you start the appeal?
Getting started is relatively easy. You start by filing a Notice of Appeal in the proper superior court.. The notice of appeal is a very brief document simply telling the Court that you are appealing your license suspension.
You also must send a copy of your appeal notice to the Department of Licensing
What happens after the appeal is filed?
The party who files an appeal (known as the appellant) has to prepare the record on appeal. In a DOL appeal, this primarily means getting a court reporter to transcribe the DOL hearing and provide a written copy of the transcript to the superior court and the Department of Licensing. Unless you are indigent, you will have to pay costs of ordering and filing this transcript. You also have to file a copy of the DOL hearing ruling.
Next the parties prepare and file their briefs (written arguments) and the superior court schedules oral argument. After oral argument, the Court issues a written ruling either upholding or reversing your license suspension.
If you appeal, is your license still suspended?
Unfortunately, yes. The suspension remains in effect during the entire appeal period unless you can convince the superior court to “stay” your suspension (i.e. stop the suspension from taking effect while your appeal is pending)
To win a stay, you have to show two things: (1) that you're likely to win your appeal; and (2) that you would suffer "irreparable harm" if your license was suspended. This requires filing a separate motion with the superior court, preferably as soon as possible after filing your notice of appeal.
This is not an easy motion to win. It's not enough, for instance, to argue that you need your license to keep driving (everyone would make that argument). You have to show something really compelling, like severe financial hardship.
Can I still drive during my appeal?
Fortunately, yes. But, first, you have to get an ignition interlock license (IIL), which requires you to get an ignition interlock device installed in your car.
Once you have an IIL, you can continue driving without any restrictions during your period of suspension.
To qualify for an IIL, you must do three things:
- Pay the required $100 application fee to the Department of Licensing
- Install and maintain an ignition interlock device in your personal vehicle. (There is an “employer exception” that applies if you drive your boss's vehicle solely for employment purposes).
- Maintain SR-22 insurance during the period of your suspension
To simplify a somewhat complicated subject, SR-22 insurance is technically not a type of insurance. "SR-22" is a certificate that your insurance company files with DOL stating that you carry the minimum liability coverage required in Washington.
If you're lucky, your current insurance company will file this certificate at little or no extra expense, but you may have to purchase additional insurance from a different company that is willing to file an SR-22 certificate on your behalf. This may cost upwards of $1,000 a year.
How does the superior court decide your DOL appeal?
On appeal, the superior court considers the same issues that the DOL hearing officer had to consider at your initial administrative hearing.
- Did the police officer have a legal basis to arrest you?
- Did the officer have reasonable grounds to believe that you were driving under the influence of alcohol and / or driving with a blood alcohol level over the legal limit?
- Did the police officer properly advise of your right to either take or refuse a breath test (known as your “implied consent warnings”)?
- Did the police officer properly administer the breath test?
- If you refused the test, did you knowingly and intelligently refuse the breath test?
To win your appeal, you have to convince the Superior Court that the DOL hearing officer committed "errors of law" based on the evidence presented at the administrative hearing. (This evidence typically includes the police report, breath test documents, and the officer's testimony).
The appeal is limited to the record—you don't get to present new evidence in the superior court.
What happens if you lose your superior court appeal?
If you lose in the superior court, you can appeal the superior court's ruling in the Court of Appeals. Unlike a direct appeal, however, the Court of Appeals can refuse to hear your appeal. That's why this second-level appeal is called a “discretionary appeal.”
The Court of Appeals only hears certain types of cases. The case, for example, must involve an issue of public interest, or the superior court's ruling must have conflicted with a prior Court of Appeals or Washington Supreme Court decision. When filing your discretionary appeal, you have to convince the Court of Appeals that one of these factors is present.
If the Court of Appeals denies review, your appeal is over and your license remains suspended.
If the Court accepts discretionary review, the appeal follows the same procedure that applies in superior court: you prepare and file the transcripts, the parties file briefs, the court schedules oral argument, and the Court issues a ruling.
If you lose in the Court of Appeals, you can appeal to the Washington Supreme Court. This is also a discretionary appeal, and the Supreme Court is even more selective about what kinds of cases it hears. The case, for instance, must involve an issue of substantial public interest or the Court of Appeals' ruling must have conflicted with a prior Supreme Court.
The Supreme Court accepts very few DOL appeals.
What happens if I win my appeal?
If you win your appeal, the Superior Court reverses the Department of Licensing's decision suspending your license and DOL must reinstate your full driving privileges. (Or maybe the Court of Appeals reverses the Superior Court's ruling upholding your suspension .
Your full driving privileges are restored, and you no longer need an IIL or SR 22 insurance.
Keep in mind, however, that the Department of Licensing also has the right to appeal, in which case the same procedures described above apply. But this time, your license remains fully restored during the appeal.
How long does a DOL appeal take?
In general, appeals (not just DOL appeals) take a long time to resolve. A superior court appeal ranges from 6-9 months, but if appeals proceed in the Court of Appeals or WSC, the appeal period can easily stretch over a year.
In many cases, your actual license suspension will end before the appeal is actually heard, which may make you wonder why you should file an appeal in the first place. Keep in mind, however, that if you win your appeal, the suspension is erased from your Washington driver's record and the SR insurance requirement is also lifted.