Monthly Archives: December 2016

DOL proposes new rule creating binding “significant decisions”

The Washington State Department of Licensing (DOL) handles administrative license hearings stemming from several scenarios, including administrative license suspension hearings following DUI arrests. You can read more about these DUI administrative license suspension hearings on my other website. DOL can modify the rules of these DUI administrative license hearings by proposing new rules and taking into consideration comments from the public. Recently, DOL has proposed one such rule of interest to DUI defense attorneys. Currently, when a person arrested for DUI (the petitioner) requests a DUI administrative license suspension hearing, and pays the $375 fee, their case is assigned to one of eighteen DOL hearing examiners. Technically, a DOL hearing examiner does not need to be an attorney, but most are. The petitioner can subpoena the police officer if they want, and submit other evidence. The DOL hearing examiner reads the police report, takes into consideration evidence submitted by the petitioner, makes a written decision, and mails the written decision to the petitioner. The hearing is typically conducted over the telephone. If the petitioner loses the hearing (which is most often the case), the petitioner can appeal the written decision to Superior Court and the Superior Court Judge has the power to either or affirm or overrule the DOL hearing examiner’s decision.

DOL has proposed a new rule, WAC 308-104-350, which would allow anyone to recommend that a DOL hearing examiner’s written decision be deemed a “significant decision.” If a ruling is deemed a significant decision, it would be indexed and made available to the public. The idea being that one could read through the significant decisions and get an idea of how DOL hearing examiners rule on a particular legal issue. None of this part of the rule is particularly controversial. What is more controversial is that under the proposed a new rule, WAC 308-104-350 subsection (7), the significant decisions would be binding authority in any future hearing. In other words, once a significant decision is made and categorized on a particular legal issue by one hearings examiner, that ruling would be binding on all other hearing examiners. The argument against this rule is that if the legal issue is important to your case, you would be stuck with the ruling made by another hearing examiner on a case you are not a party to and did not have a chance to present argue on. Of course, if you believe the significant decision ruling is legally incorrect, you could always lose the DOL hearing and then appeal the matter to Superior Court. If passed, it appears this rule is an attempt by DOL to make it easier for hearing examiners to rule against drivers challenging their administrative license suspension. The rule is currently pending public comment.

Court finds public defender who did not meet basic experience requirements not ineffective

I previously wrote about who qualifies for a public defender. In order to ensure indigent defendants receive effective assistant of counsel, the Washington State Bar Association (WSBA) has adopted standards for indigent defense for public defenders to meet. In the recent decision, State v. Flores, Division III of the Court of Appeals was asked whether a defendant’s conviction should be overturned if the public defender on the case did not meet those standards for indigent defense.

The defendant in the case went to trial on a charge of Robbery in the First Degree and Assault in the First Degree, both class A felonies (meaning they are punishable by up to life in prison and a $50,000 fine, and are also a strike offense). In order to defend a person of a class A felony, Standard 14.2 B requires the public defender to either have had at least two years experience as a prosecutor, public defender, or a private criminal defense attorney. The attorney in the case did not have the requisite two year experience, and in fact, was aware that they did not meet Standard 14.2 B. Despite this, the attorney did not bother to inform the court of they lacked the required experience and the defendant was convicted.

On appeal, the court was asked to reverse the conviction and remand the case for a new trial based on the attorney’s knowing failure to meet Standard 14.2 B (meaning they had less than two years experience in criminal law). The court concluded that while a violation of the standards of indigent defense is evidence of deficient performance to be considered in assessing an ineffective assistance of counsel challenge, it does not, by itself, require a finding of ineffective assistance of counsel and reversal of a conviction. The court concluded that in this particular case, even though the attorney had less than two years experience, the attorney was not ineffective and the conviction was upheld. It will be interesting to see if the case is appealed to the Washington Supreme Court. If the Supreme Court overrules the Court of Appeals, it will send a clear message that counties and cities in Washington must ensure public defenders are fulfilling the standards of indigent defense or face convictions being overturned.