WPIC 93.02 Driving While License Revoked—First Degree—Elements

In element (4) select from among the bracketed terms depending on whether the case is in superior, municipal, or district court. See discussion in WPIC 4.20 (Introduction).

If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See WPIC 4.20 (Introduction) and WPIC 190.10 (Special Verdict Form—Jurisdiction).

RCW 46.20.342(1)(a).

This instruction was modified in 2014. The bracketed language “revoked in the first degree” was removed from previous versions of this instruction in accordance with State v. Smith, 155 Wn.2d 496, 120 P.3d 559 (2005). In Smith, a first degree driving while license suspended case, the jury was instructed that, in order to convict the defendant, it must find that “the defendant's privilege to drive was suspended or revoked in the first degree.” The Supreme Court reversed the conviction, finding that the State must prove that the defendant drove a vehicle while under an order of revocation as an habitual traffic offender, not merely that he was “driving while license suspended or revoked in the first degree” without further explanation for the underlying suspension. State v. Smith, 155 Wn.2d at 504.

Driving while license “revoked.” If a person is a “habitual offender” pursuant to RCW 46.65.020, his or her driver's license will be revoked for seven years, RCW 46.65.060. Note that RCW 46.04.480 defines “revoke” to mean the invalidation for a period of one calendar year and thereafter until reissue. RCW 46.04.580 defines “suspend” to mean invalidation for any period less than one calendar year and thereafter until reinstatement. Accordingly, unlike driving while license suspended or revoked in the second and third degree, one would not commit the crime of driving while license “suspended” in the first degree despite the Legislature's naming this crime as “suspended or revoked.”

Department of Licensing's authority to suspend or revoke driver's licenses. RCW 46.20.291 grants authority to the Department of Licensing (DOL) to suspend a person's driver's license under certain enumerated situations. RCW 46.20.285 requires DOL to revoke a person's driver's license upon conviction for certain offenses. Upon conviction, RCW 46.20.270 requires the court to specially mark a person's driver's license and the DOL to pursue forfeiture of the license. The duration of any driver's license sanction is set forth in RCW 46.20.311.

The suspension or revocation order must be “in effect.” Washington's statutes require that the order of revocation or suspension “prohibiting such operation is in effect” at the time of driving. See RCW 46.20.342(1)(a) (first degree driving while license revoked); RCW 46.20.342(1)(b) (second degree driving while license suspended or revoked). The “in effect” language is generally equivalent to the statutory period of suspension. In DWLS 2 cases, the expiration of the one or two year period of suspension will, by operation of law, change the driver's status to DWLS 3 because the person is eligible for reinstatement once the statutory period of suspension has expired. See generally RCW 46.20.311. However, the “in effect” language has a slightly different meaning for DWLS 1 (habitual traffic offender). The period of suspension for HTO does not terminate at the end of the statutory suspension period; instead, the driver must comply with reinstatement requirements before his or her status is changed. State v. Danner, 79 Wn.App. 144, 900 P.2d 1126 (1995). In an appropriate case, a jury instruction that incorporates this statutory information may be desirable.

RCW 46.20.205 provides the exclusive statutory method to change one's address of record with the DOL. RCW 46.20.205(1)(b) provides that any notice regarding suspension or revocation of a driver's license mailed to the address of record as maintained by the DOL is effective notwithstanding the licensee's or identicard holder's failure to receive notice. See also State v. Perry, 96 Wn.App. 1, 4–5, 975 P.2d 6 (1999) (notices mailed to the address of record are deemed effective regardless of the licensee's failure to receive it; first degree driving while license revoked conviction reversed because DOL mailed the notice to a different address than the address of record in DOL's database). “[N]otice sent to a license holder's last known address provides notice reasonably calculated to advise the license holder.” City of Redmond v. Arroyo-Murillo, 149 Wn.2d 607, 619, 70 P.3d 947 (2003).

Due process challenge to statutory scheme. The privilege to operate a motor vehicle is a valuable property right which may not be suspended or revoked absent due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); City of Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004). In Moore, the Supreme Court held that, except in cases where the suspension arises out of a court conviction, due process requires an administrative hearing before a license may be suspended. In response to the decision in Moore, the legislature immediately and substantially modified the statutory scheme to provide an administrative hearing process. Moore is more fully discussed in the Comment to WPIC 93.07 (Driving While License Suspended or Revoked—Third Degree—Administrative Suspension—Elements); however, it is worth noting here that the holding is not applicable to first degree driving while license revoked, because in all such cases an administrative hearing is provided at the DOL. RCW 46.65.065.

Validity of suspension or revocation order. The validity of the suspension or revocation order is not an element of the crime to be determined by the factfinder, but is instead a legal question for the court. State v. Mecham, 181 Wn.App. 932, 331 P.3d 80, affirmed on other grounds, 186 Wn.2d 128, 380 P.3d 414 (2016). Accord, State v. Smith, 122 Wn.App. 699, 94 P.3d 1014 (2004), reversed on other grounds, 155 Wn.2d 496, 120 P.3d 559 (2005) (regarding validity of underlying DOL administrative order); State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005) (regarding validity of underlying no-contact order). Generally the validity of the suspension or revocation order will be resolved by the trial court through the process outlined by State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986), or by the trial court through other motions practice.

Not a lesser included offense. Neither DWLS 2 nor DWLS 3 are lesser included offenses of DWLR1. State v. Jasper, 158 Wn.App. 518, 538 n.8, 245 P.3d 228 (2010), as amended on denial of reconsideration December 1, 2010, affirmed, 174 Wn.2d 96, 271 P.3d 876 (2012); see also State v. Smith, 155 Wn.2d 496, 503–04, 120 P.3d 559 (2005). However, the degrees of DWLS are “lesser degree offenses” as contemplated by RCW 10.61.003, and may under some circumstances require additional instructions to the jury. State v. Jasper, 158 Wn.App. at 538 n.8. See WPIC 4.11 (Lesser Included Crime or Lesser Degree). Driving without a license, RCW 46.20.005, is expressly a lesser included offense of DWLS 1, 2, or 3. See State v. Hancock, 190 Wn.App. 847, 360 P.3d 992 (2015).