News & Updates

Defender Wins DWLS Argument Based on DOL Mailing Procedures
August 7, 2020 | Alison Pagan

Bruce Shamulka, an attorney with the King County Department of Public Defense SCRAP Division, has won a RALJ appeal regarding notice in several cases of first degree driving while license suspended (DWLS 1). The decision should be helpful to other defenders litigating notice in many DWLS cases, regardless of the degree of suspension. Bruce was the attorney who litigated both the successful pretrial motion and the RALJ appeal that followed.

Bruce based his motion on gaps in the testimony of the Department of licensing (DOL) employee who the State called as a witness.  The employee testified that DOL produces notice letters letting drivers know it will suspend their licenses, but another government entity, CMS, sends those letters. He spoke about how DOL produces notice letters, but he could not name the specific DOL employees who produced the letters at issue, and he did not know what happened to any letters once CMS had them.

Bruce’s motion alleged that his clients’ license suspensions did not comply with due process. Before the government may revoke a driver’s license, it must give the driver notice and an opportunity to be heard. State v. Dolson, 138 Wn.2d 773 (1999). Notice must comply with due process or the license suspension is void. Complying with due process includes complying with statutes that govern sending notice. Dolson, 138 Wn.2d 773.

Two statutes that govern sending notice of pending license revocations address mailing procedures. Under RCW 46.65.065, DOL must send habitual traffic offender (HTO) revocation letters via United States Postal Service (USPS) certified mail. Under RCW 46.20.245, DOL must place all revocation letters in the United Stated mail with postage prepaid.

A party seeking to prove a letter was mailed from an organization sending a large volume of mail must show two things: (1) the existence of an office custom concerning mailing and (2) that the custom was complied with in a specific instance. Farrow v. Department of Labor and Industries, 179 Wash. 453 (1934). The RALJ decision held that the State had not met either requirement.

The State failed to show the existence of a mailing custom at DOL because the DOL employee testified only to how DOL produces notice letters. Testimony regarding part of an office mailing custom is insufficient to show the complete routine. Kaiser Aluminum v. Department of Labor and Industries, 57 Wn.App. 886, 892 (1990).

The State also failed to prove that DOL followed whatever mailing custom it had for the specific notice letters at issue.  Copies of the notice letters in the drivers’ DOL files showed only that DOL likely also generated copies to send to the drivers. They did not show that DOL or CMS actually mailed the notice letters. See Tassoni v. Department Retirement Systems, 108 Wn.App. 77 (2001) (copy of notice in file insufficient to show notice was mailed).

Because the State could not prove that DOL complied with statutes governing the mailing of notice letters, it could not show that notice to the drivers complied with due process. The drivers’ license suspensions were void. The RALJ decision and Bruce’s brief are on WDA’s website.