DOL Hearing Process

The Ultimate Guide To DOL Hearings

DOL Hearings for DUI Cases

Preparing for the hearing

In most cases we need ample time to prepare for your DOL hearing and may need to subpoena the arresting officer or witnesses. 

If we need more time to prepare for your hearing or need to reschedule your hearing for any reason, we may request that the hearing officer grant  a continuance.

A continuance means that the hearing will be rescheduled to a later date. The request must be in writing and include the reason we want to continue the hearing.

The request should be submitted as soon as possible, and the hearing officer generally must receive it at least two business days before the hearing. Otherwise, the hearing officer can simply deny the request unless he or she believes that your reason for requesting more time is an emergency.

No matter what your reason for requesting a continuance is, the hearing officer may require us to submit evidence in support of our reason for the request. It is important to note that we may request a continuance only once.

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  • If you are entering a deferred prosecution in your criminal case and meet certain criteria, you may request a “stay” of your suspension or revocation.
  • Washington laws allow a stay of a license suspension for WA-licensed drivers who are entering a deferred prosecution in their criminal case, as long as they did not refuse the breath test.
  • This means that DOL will not take action against the driver’s license for a period of time (150 days after you were charged) during which time the temporary license remains valid, giving you and the court time to enter the petition which starts the process. This process is not available to protect your commercial driver’s license privileges.
  • You can obtain a form to notify DOL that you intend to seek a deferred prosecution for your reference. However, you should not submit this form without seeking the advice of a qualified DUI lawyer, because if you do not enter a deferred prosecution program, you will have lost the opportunity to contest the action against your license.
  • In addition, deferred prosecution programs take an enormous commitment and many do not succeed.
  • Our qualified Washington DUI defense attorneys can explain the challenges of the rigorous deferred prosecution program so that you can determine whether it is right for you.

To qualify to request a stay, you must meet three requirements:

  1. You must have taken the breath or blood test at the time of your arrest.
  2. This must be your first deferred prosecution program for a driving-related offense.
  3. You must file the necessary form with DOL.

 

Subpoenaing Witnesses

  • You will be permitted to have witnesses subpoenaed to testify at the hearing, including the arresting officer(s). We will discuss this option with you and determine whether subpoenaing witnesses to testify would be beneficial in your case.
  • We might, for example, decide that it would be helpful to have an expert witness testify on your behalf. An expert witness is someone with special knowledge about a scientific or technical issue who may be able to help you win your case. DOL hearings are difficult to win and you need experienced DUI lawyers like ours, who can identify the best strategy for success in these highly technical hearings. The hearing officer can issue subpoenas for witness testimony, but the subpoena must be served no later than 5 business days before the hearing.
  • A subpoena must be personally served to the potential witness. This means that after the subpoena is complete with the hearing officer’s signature, our staff must deliver a copy of the subpoena to the witness, in person, or if the person is an officer, the subpoena can be personally delivered to a responsible person at the police station where he or she works.
  • The deadline for service of the subpoena is 5 business days before your hearing. The person who delivered the subpoena must fill out the “Proof of Service” section of the subpoena on the lower-left corner after serving the witness with the subpoena. The hearing officer must receive a copy of it, preferably, before the hearing.
  • Additionally, a “subpoena duces tecum” is available by request from the hearing officer, which can be sent to a person if the person has books, documents, or things that are relevant to the case. The subpoena must state a time and place for the person to bring the item(s), and the hearing officer might require you to pay for any costs involved in the person’s bringing the item(s).

Handling the hearing live

Linda M. Callahan

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Telephonic Hearing

At the time scheduled for your telephone hearing, the hearing officer will call us if we have been hired on your case.

  • Typically, the hearing will last for up to one hour. If the Department of Licensing cannot get through within twenty minutes of the scheduled hearing time, you will automatically lose. If you have time and would like to listen in while your lawyer conducts your hearing, you can meet your lawyer at our office, or the hearing officer can conference you into the call.
  • The hearing officer will “go on the record,” which means that he or she will begin recording the call so that if the case is later appealed, a judge will be able to go over all of the evidence and the hearing officer’s decisions. First, the hearing officer will go over the issues in your case.

Exhibits

  • After going over the issues in the case, the hearing officer will admit “exhibits” or items of evidence, including the police report, into the record. This will allow the hearing officer to consider those items in his or her final decision. Before each exhibit formally enters the record in the case, your lawyer will have an opportunity to object to the admission of the evidence or state an argument why the hearing officer should not allow the item to come in.
  • Your lawyer may also introduce exhibits into evidence. It is a good idea to send the exhibits to the hearing officer well in advance of the hearing so that he or she may review them if they so desire, prior to the hearing. Videos must be submitted well in advance of the hearing and will become part of the record of the case and not be returned. As to each potential item of evidence, the hearing officer will decide either to allow it to come in or not allow it, after considering your lawyer’s arguments. The hearing officer will state the reason for the decision so that if the case is appealed, a judge can determine whether the hearing officer made the right decision.

Testimony

  • Any witnesses who have been subpoenaed will be conferenced into the phone call and sworn in before your lawyer will be able to question them. If other witnesses testify whom you have not subpoenaed, your lawyer will have an opportunity to make objections to their testimony and cross-examine them. For example, police officers with knowledge of the case may testify. The hearing officer may also question witnesses, and you or your lawyer will have the opportunity to make objections to the testimony. After witnesses testify against you, you can introduce evidence in the form of testimony or exhibits to rebut or disprove, what they said. You also have the right to testify on your own behalf.
  • You should never decide to testify without the advice of an experienced DUI lawyer because your testimony might hurt your case, and the prosecutor in your criminal case may use the recording of your hearing to obtain a transcript to use against you. Or, something you say may be taken out of context and used against you. Similarly, you could say something that prevents your lawyer from using a particular defense in your criminal case. As in your criminal case, at the DOL, you have the right to remain silent and make the government prove its case against you.

Legal Arguments

  • You or your lawyer will have the opportunity to submit written legal briefs as well as oral legal arguments over the phone during the hearing itself. The legal arguments may involve some of the issues listed below. A good DUI lawyer will have a thorough knowledge of Washington laws and prior court cases and may be able to use that knowledge to persuade the hearing officer not to suspend or revoke your license.

“Tough DUI Laws Require Tough DUI Lawyers”

Linda M. Callahan

DOL Hearing Strategies

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Evidence-Based Consideration

  • The DOL may make it seem cut and dry, but in fact, there are many issues that the hearing officer will look at in deciding whether your license should be suspended or revoked.
  • The state carries the burden of proof, which means that the Department’s evidence must persuade the hearing officer that it should win by a preponderance of the evidence. This means that the hearing officer must be convinced that it is more likely than not that a particular fact has been proven. You, the driver, do not necessarily need to submit any evidence to win.

Issues for the Hearing Officer to decide are:

  • Whether you were lawfully arrested.
  • Whether the officer had “reasonable grounds” to believe that either:
    1. You were driving or were in physical control of a motor vehicle while under the influence of alcohol or drugs.
    2. You were under the age of 21 years and were driving or in physical control of a motor vehicle after consuming alcohol.
  • Whether the officer correctly gave you the Implied Consent Warnings (“ICWs”). Washington court cases have set out some very specific requirements for officers to follow when they explain drivers’ rights to them that the officer may or may not have followed at the time of your arrest. If you were misled by something the officer told you, or not warned accurately, or expressed confusion to the police officer but nothing was done to dispel your confusion, the hearing officer may dismiss your case.
  • Whether you actually refused the breath or blood test. For example, in some cases, medical problems might actually be responsible for what the officer called a “refusal”. In other cases, there could have been an equipment malfunction.
  • Whether the breath or blood test result was:
    • .08% or more if you were at least 21.
    • .02% or more if you were under age 21.
    • .04% or more if you were driving a commercial vehicle.
  • Whether the officer made mistakes when he or she gave you the breath or blood test. Both Washington law and the Washington State Toxicologist Policies and Procedures may help a competent lawyer win a dismissal.
    For example, the police officer may have failed to observe you for a long enough period of time before giving you a breath test or have forgotten to make sure that you did not eat, drink, or smoke right before taking the test. Officers sometimes forget to check a driver’s mouth prior to a breath test or to check again a second time if the first sample comes back with a result of “invalid.” Or perhaps the officer was not qualified to give you the type of test that he or she gave you, or the officer or the toxicology lab mishandled the evidence in your case.
Winning a DOL Hearing

You may be wondering if a lawyer really can help you win your DOL hearing, or if fighting the DOL is even worth your time and energy. The truth is that while a DOL hearing is tough to win, DOL does dismiss cases against drivers.

You will have a much better chance if you have an experienced lawyer on your side. 



The arguments that can be made in any given DOL hearing are extremely fact-dependent, and a seasoned Washington DUI lawyer will have the technical knowledge necessary to bring the best arguments forward in your DOL hearing. It is possible to win, and this may be your only shot at fighting to keep your license.

Dismissal of Suspension - DOL Win
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The following is a partial list of some of the reasons that DOL might dismiss your case, and facts that a good DUI lawyer will look at in your case:

  • Incomplete or defective report (a missing key element of evidence). If the officer was careless in filling out the police report, he or she may have left out critical information. Or, the officer may have sent only a portion of the report to DOL and left out a necessary piece of it. A good DUI lawyer can determine whether the report is missing any information that DOL needs to suspend or revoke your license.
  • Illegible report. If parts of the officer’s report are not legible, the hearing officer might not be able to read critical pieces of information. A good DUI lawyer can determine whether the illegible parts fail to prove some necessary fact that without which the hearing officer cannot suspend or revoke your license.
  • Boxes not checked or typos. Sometimes an officer will leave out critical information by not checking a necessary box or by making a typographical error. Not all boxes on the report must be checked. Your lawyer will determine which boxes should have been checked in your case based on the facts of your case. If all necessary boxes are not checked, sometimes the matter can be won if the information is not given elsewhere in the report.
  • Missing pages. If the police officer left out critical information by not including all of the pages that the report should contain, your case may be dismissed. Not every page contains critical information. A knowledgeable DUI DOL hearing attorney will know what the police report must contain and know when pages are missing.
  • Officer error. No one is perfect, and police officers, like everyone else, make mistakes. A seasoned DUI lawyer will be on the lookout for the sometimes-subtle signs of officer error and can identify those errors that might tear down the state’s case against you. Sometimes even a “minor oversight” or officer forgetfulness means that you could win under Washington law.
  • Collateral estoppel. Under the law, the government may be unable to prove its case because it already lost part of its case in another proceeding (such as a criminal DUI case). If you were charged with a crime, an experienced lawyer will evaluate your case to see if collateral estoppel applies.
  • DOL error. Just like police officers, DOL doesn’t always get it right. Your lawyer will evaluate the facts to determine if DOL destroyed its own case against you. For example, DOL may have not followed the necessary timeline in your case or provided you with the information to which you were entitled at the time you had the right to have it.
  • Credibility. Credibility has to do with whether or not a statement is believable. If the hearing officer does not or should not believe a report or a witness’ testimony, it may be key to winning your hearing. A lawyer who has experience in DUI is trained to spot a credibility issue and has the tools necessary to expose a credibility problem of a witness to the hearing officer. For example, your lawyer might catch a witness in the act of contradicting himself or herself or showing that a statement cannot possibly be true. If one statement is shown to be false, a good lawyer may be able to convince a hearing officer to throw out everything the person said.
  • Legal issues. The Washington legislature has created a web of intricate laws related to DUI cases and driver licensing. Also, Washington courts have created judge-made law that may be able to help you win your case. You may be entitled to win your case if DOL just doesn’t have enough evidence to make a point that the state must make in order to win. If you don’t consult a knowledgeable Washington DOL hearing lawyer, you might not even know that your rights were violated or that you deserve to win.
  • Unlawful stop. A police officer cannot pull over your vehicle without a good reason under the law. If the police officer should not have pulled you over, anything he or she saw, heard, or learned afterward typically cannot be used against you by the state.
  • Unlawful arrest. The police cannot arrest a person for DUI or Physical Control without probable cause. It may have been unreasonable for the officer to place you under arrest if he or she did not have enough information to suspect you committed a crime at the time he or she arrested you. Was there enough information to think you were intoxicated? Was there evidence to suggest that you were driving? Your DOL hearing lawyer will explore these and other issues.

 

Because good evidence can become harder to find as time passes, it is important to contact a Washington DUI attorney as soon as possible after your arrest so that the key facts and evidence in your case may be recorded and preserved. This will allow your lawyer to have the best opportunity to help you keep your license.

DOL Hearing Results

The hearing officer must prepare a written decision called a “final order” that announces a decision about all of the issues in your case. You and your lawyer can expect to receive this decision by mail, usually within a few weeks after the hearing. The final order will state whether the proposed suspension or revocation will go into effect and if so, when it will go into 


effect, or whether your DOL case is dismissed. Consult with your lawyer to discuss all of the available options at this point. Once you receive the final order, you have 30 days to appeal the case to the superior court if DOL did not dismiss your case. This option is discussed in more detail below.

DOL Appeal

Another option may be to file a petition for reconsideration of the order with the hearing officer who decided the case. Once you receive the final order, you have 10 days to seek reconsideration. Reconsideration is available if there are item(s) of new evidence or legal argument(s) that:

  • Are material to the issue(s)
  • Could not have been discovered using due diligence prior to the hearing

The hearing officer may issue a new final order or set another supplemental hearing to decide the new issue(s). While the petition for reconsideration is pending, the suspension or revocation will go into effect according to the final order. It will not automatically be stayed. The suspension or revocation remains in effect unless you file a separate request for a stay and the hearing officer grants the request. Whether or not he or she will grant the request depends on whether or not he or she believes the petition for reconsideration is likely to be successful and the action in the final order is likely to be changed. Even if those two requirements are met, the hearing officer will not issue a stay unless he or she decides that denying the stay will cause you irreparable harm.

After the hearing officer decides the issues in the petition for reconsideration, he or she will issue an amended order either denying the petition or amending the original final order. Once you receive the amended order, you have 30 days to appeal it. After that point, you may no longer appeal the original final order to the superior court. A denial of reconsideration cannot be appealed. A petition for reconsideration is not without its risks and like all options throughout the hearing process, an experienced DUI lawyer can help you make the best decision about whether or not you should pursue it.

Appealing a Decision

You must petition the superior court within 30 days if you wish to appeal the hearing officer’s final order. You are responsible for the cost of obtaining a copy of the DOL hearing record, and of having it transcribed by a certified transcriptionist, so that the superior court may review the record of the hearing. As in a petition for reconsideration, filing an appeal does not automatically stay the suspension or revocation. You may request that the superior court grant a stay. In deciding whether or not to do so, the superior court judge will determine whether or not you are likely to be successful on appeal. Even if it finds that you are likely to be successful, the court will not issue a stay unless it finds that if it denies the stay, you will suffer irreparable injury.

On appeal, the Superior Court will determine if the DOL made any legal errors. The court will only reverse the hearing officer’s decision about whether a fact is true if the decision is not supported by substantial evidence, so appeals are rarely won on the issue of the credibility of the law enforcement officer’s report or testimony. Your lawyer will have the opportunity to submit legal briefs and make oral arguments in court. The superior court will issue a written decision either “affirming” (agreeing with), “reversing” (disagreeing with) or modifying the decision of the hearing officer. The superior court also has the power to send the case back to DOL for another hearing.

There is an obvious incentive to appeal your case to Superior Court, especially if your lawyer believes that the DOL’s decision is not supported by the evidence or the law. 

But if you are unsuccessful in defending your license at your DOL hearing and you decide not to appeal your case, you can apply for an Ignition Interlock driver’s license. This will allow you to continue to drive during your suspension or revocation period so long as you keep an Ignition Interlock Device (IID) installed on all of the vehicles you drive (except, in some cases, vehicles you drive in the course of your employment) and meet certain other requirements.

If you lost your DOL Hearing or choose not to apply for one, learn how to drive legally.

Apply for an Ignition Interlock License

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