WPIC 93.07 Driving While License Suspended or Revoked—Third Degree—Administrative Suspension—El...

Use this instruction for cases of third degree driving while license suspended or revoked except those cases brought under subsection (vi) of the statute, RCW 46.20.342(1)(c), governing suspensions as a result of administrative action by the Department of Licensing. For cases brought under subsection (vi), use WPIC 93.07.01 (Driving While License Suspended or Revoked—Third Degree—Conviction—Elements) instead of this instruction.

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (2). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For the related jury interrogatory, see WPIC 93.08 (Driving While License Suspended or Revoked—Third Degree—Special Verdict Form), and WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case in which substantial evidence supports only one of the alternatives in element (2), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

The instruction above is drafted to include references to particular statutes, even though this is not usually the preferable practice. The RCW citations are included here in order to parallel the language found in most DOL orders, which generally state the grounds for suspension/revocation in terms of a violation of a particular RCW citation, rather than as a conviction of a particular named offense. Use the bracketed “relating to” phrase following the RCW citation when doing so will aid in juror understanding. For directions on using bracketed phrases, see WPIC 4.20 (Introduction). The instruction may need to be modified for cases in which the DOL order is phrased other than with a bare RCW citation.

In element (3), 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)(c). This statute is frequently amended. This instruction was revised in 2015 to reflect a legislative change that adds an additional basis for third degree license suspension (certified noncompliance with a child support order). See Laws of 2015, Chapter 149, § 1 (effective May 1, 2015).

Paragraph (2)(e) of the instruction has been modified for this edition to correct a typographical error. RCW 46.20.342(1)(c)(v) provides that one means to commit this offense is: “the person has committed an offense in another state that, if committed in this state, would not be grounds for the suspension or revocation of the person's driver's license.” Although correctly stated in WPIC 93.06 (Driving While License Suspended or Revoked—Third Degree—Definition), WPIC 93.07 contained a typographical error which has now been corrected.

RCW 46.20.342(1)(b) provides: “A person is not eligible to reinstate his or her driver's license or driving privilege if the person is eligible to obtain an ignition interlock driver's license but did not obtain such a license.”

RCW 46.20.342(1)(c) provides that “[a] person who violates this section when his or her driver's license or driving privileges is, at the time of the violation, suspended or revoked solely because [18 alternative means].” The word “solely” was removed from this instruction to avoid jury confusion if more than one alternative means is submitted to the jury. The WPI Committee believes that the word “solely” was added by the Legislature to distinguish driving while license suspended/revoked in the third degree from first and second degree, and is unnecessary when instructing the jury on third degree.

The reason for the suspension is an essential element of any DWLS charge. State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005). Accord State v. Johnson, 179 Wn.2d 534, 543, 315 P.3d 1090, cert. denied 574 U.S. 856, 135 S.Ct. 139 (2014).

History of DWLS 3 legislation. Caution should be used when the DOL order or notice was issued before 2005. The statutory scheme relating to driving while license suspended in the third degree was substantially rewritten in 2005 in response to the holding in City of Redmond v. Moore, 151 Wn.2d 664, 677, 91 P.3d 875 (2004). The Washington Supreme Court found the law relating to driving while license suspended in the third degree (RCW 46.20.289 and .324(1)) was “contrary to the guaranty of due process because the statutes did not provide adequate procedural safeguards to ensure against the erroneous deprivation of a driver's interest in the continued use and possession of his or her driver's license.” City of Redmond v. Moore, 151 Wn.2d 664, 677, 91 P.3d 875 (2004). The holding in Moore expressly applies to RCW 46.20.289(1): failure to respond to a notice of traffic infraction, failure to appear at a requested hearing, violation of a written promise to appear in court, or a failure to comply with the terms of a notice of traffic infraction or citation. City of Redmond v. Moore, 151 Wn.2d 664, 677. (By this holding, the Supreme Court overturned what had seemed to be well-settled law in this area. Previously, the Supreme Court had found due process to be met because, where a driver's license was suspended automatically by the Department of Licensing on notice of an action taken by a court (e.g., failure to pay a traffic infraction), no further administrative hearing was required to ensure due process. Lewis v. State Dep't of Motor Vehicles, 81 Wn.2d 664, 666, 504 P.2d 298 (1972); Burman v. State, 50 Wn.App. 433, 749 P.2d 708 (1988); Mentor v. Nelson, 31 Wn.App. 615, 644 P.2d 685 (1982); Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977).)

The Washington State Legislature promptly responded to the issue raised in Moore and amended the applicable statutes to provide for administrative hearings to correct the constitutional infirmities in the prior law.

Post-Moore decisions. Court decisions since 2005 have confirmed that the Moore rationale applies equally to any charge of driving while license suspended/revoked when the Department automatically suspends a driver's license without affording an opportunity for hearing. Certain third degree driving while license suspended/revoked charges occurring before July 1, 2005, may not be prohibited if an administrative hearing was offered at DOL or by a different administrative agency (e.g., failure to pay child support). City of Bremerton v. Hawkins, 155 Wn.2d 107, 117 P.3d 1132 (2005) (DOL administrative hearing not required when a minor is convicted of the crime of possession of marijuana); City of Redmond v. Bagby, 155 Wn.2d 59, 65–66, 117 P.3d 1126 (2005). In Bagby, multiple respondents brought due process challenges for mandatory suspensions issued after conviction (including for DUI, reckless driving, vehicular homicide, and eluding police) but with no opportunity for an administrative hearing. The court found that “sufficient due process requirements exist for those who have their driver's license suspended based on a criminal conviction.” City of Redmond v. Bagby, 155 Wn.2d at 66.

Failing to pay a traffic infraction fine imposed by a court falls within the statutory definition of failing to comply with a notice of infraction (former RCW 46.20.342(1)(c)(iv)), and thus may form the basis for a charge of DWLS 3. State v. Johnson, 179 Wn.2d 534, 543, 315 P.3d 1090 (2014).

Not a lesser included offense. DWLS 3 is not a lesser included offense of DWLR 1 or DWLS 2. State v. Jasper, 158 Wn.App. 518, 538 fn. 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).