Opinion
No. 51032-1-I.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-22707-4. Judgment or order under review. Date filed: 08/21/2002. Judge signing: Hon. Hollis Holman.
Counsel for Appellant(s), Elizabeth Anne Padula, Goddard Wetherall Wonder Padula, 155 108th Ave NE Ste 700, Bellevue, WA 98004-5901.
Counsel for Respondent(s), Jonathon Aurel Gurish, California Coastal Conservancy, 1330 Broadway Ste 1100, Oakland, CA 94612.
The Department of Licensing suspended Jeffrey Glenisky driver's license for one year. Glenisky requested a hearing to contest the suspension after the statutory time for filing a request had passed. The Department denied his request for a hearing as untimely. Glenisky then made application to superior court of a writ of mandamus to compel the Department to grant him a hearing. Because the statutory time limit to request a hearing is mandatory, and Glenisky did not timely appeal his suspension, we affirm the superior court's denial of his application for a writ of mandamus.
The facts are undisputed. Kirkland police arrested Glenisky for driving under the influence. Glenisky submitted to a breath test for alcohol. The result was insignificant, a reading of .001. Police then called in a `drug recognition expert', who ran Glenisky through a series of coordination tests. The drug evaluation expert advised police that she believed Glenisky was under the influence of drugs. An officer read Glenisky the implied consent warning for blood, and asked him to submit to a blood test. Glenisky refused. As required by the implied consent statute, RCW 46.20.308(6)(e), police reported this refusal to the Department of Licensing. Before leaving the police station, Glenisky acknowledged receipt of information regarding his right to a hearing to contest the revocation of his license which follows upon a refusal.
The Department sent a notice informing Glenisky that his license was suspended for one year and that he had a right to a hearing. The notice clearly stated that a hearing must be requested within 30 days of the arrest. Glenisky did not respond within the time allowed. Approximately two months after the deadline to request a hearing had passed, Glenisky's mother made an oral and a written request for a hearing. She said she believed Glenisky was in the midst of a manic episode at the time of arrest. The Department of Licensing denied both requests. Glenisky then retained counsel and applied to the King County Superior Court for a writ of mandamus, which the court denied. Glenisky appeals. A writ is an extraordinary remedy. Walker v. Munro, 124 Wn.2d 402, 407, 879 P.2d 920 (1994). A writ of mandamus issues to compel a government officer to perform mandatory duties of that office correctly. RCW 7.16.160. A writ should issue only when the applicant satisfies three elements: `(1) the party subject to the writ is under a clear duty to act, RCW 7.16.160; (2) the applicant has no `plain, speedy and adequate remedy in the ordinary course of law,' RCW 7.16.170; and (3) the applicant is `beneficially interested.' RCW 7.16.170.' Eugster v. City of Spokane, 118 Wn. App. 383, 402, 76 P.3d 741 (2003).
The Department contends that the appropriate standard of review is abuse of discretion, citing City of Kirkland v. Ellis, 82 Wn. App. 819, 827 n. 6, 920 P.2d 206 (1996). But that case refers to the standard of review of the determination of whether the applicant has a plain, speedy, and adequate remedy at law. The central issue in this appeal is not whether Glenisky had an alternative remedy, but whether the Department had a clear duty to provide him with a hearing and unreasonably refused to extend the time limit to appeal his license suspension past 30 days. This question involves statutory interpretation. The standard of review is de novo when the appeal from denial of a mandamus action is a question of statutory interpretation. Land Title of Walla Walla, Inc. v. Martin, 117 Wn. App. 286, 289, 70 P.3d 978 (2003).
Under the implied consent statute, a driver is deemed to give consent to a blood test, if at the time of arrest for any offense, the arresting officer has reasonable grounds to believe that the person was under the influence of a drug or alcohol while in control of a motor vehicle. RCW 46.20.308(1), (2). The driver can refuse to be tested, but refusal results in a later revocation of the person's driver's license by the Department of Licensing. RCW 46.20.308(2)(a).
The implied consent statute contains three time limits. First, the police must, within 72 hours of arrest, notify the Department of the person's refusal to submit to the test and the grounds for the officer's belief that the person was operating a vehicle while intoxicated. RCW 46.20.308(6)(e). The second limit, at issue in the present case, provides that the driver `may' request a hearing within 30 days after receiving notice of revocation:
A person receiving notification under subsection (6)(b) of this section may, within thirty days after the notice has been given, request in writing a formal hearing before the department. The person shall pay a fee of one hundred dollars as part of the request. If the request is mailed, it must be postmarked within thirty days after receipt of the notification. Upon timely receipt of such a request for a formal hearing, including receipt of the required one hundred dollar fee, the department shall afford the person an opportunity for a hearing.
RCW 46.20.308(8), in part. Third, within 60 days of the arrest, the Department `shall' hold the hearing. RCW 46.20.308(8).
Although the statute states that the arresting officer `shall' file a report within 72 hours of the arrest, the term `shall' in that context is directive, not mandatory. Frank v. Washington State Dept. of Licensing, 94 Wn. App. 306, 312, 972 P.2d 491 (1999). Glenisky asserts that the 30 day time limit to appeal should likewise be treated as directive, not as mandatory.
When interpreting a statute, the court endeavors to ascertain legislative intent of the statute as a whole. State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994). Courts should assume the Legislature means exactly what it says. Plain words do not require construction. The courts do not engage in statutory interpretation of a statute that is not ambiguous. If a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself. A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable. The courts are not obliged to discern any ambiguity by imagining a variety of alternative interpretations. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001).
The language of the implied consent statute is clear. A person `may' request a hearing. RCW 46.20.308(8). A person receiving notice of revocation, who does request a hearing, must do so `within thirty days'. RCW 46.20.308(8). The request, if mailed, `must be postmarked within thirty days after receipt of notification.' RCW 46.20.308(8) (emphasis added). The Department `shall' grant the hearing upon `timely receipt of such a request'. RCW 46.20.308(8) (emphasis added). The 30 day time period to make a request parallels the 30 day time limit for a mailed request. The obligation of the Department to grant a hearing is conditioned upon `timely receipt' by the Department of a request for a hearing. These provisions all demonstrate that the Legislature meant to institute a mandatory time by which the driver must request a hearing. There is not a reasonable way to read the statute as providing a flexible time limit for requesting a hearing.
Glenisky argues that the time limit should be interpreted as flexible because one of the purposes of the informed consent statute is to provide due process to a driver whose license will be revoked. He bases this argument on Frank v. Dept. of Licensing, 94 Wn. App. 306, 972 P.2d 491 (1999). Frank holds that the 72 hour time period within which the police `shall' notify the Department of Licensing of the arrest is directory rather than mandatory, because the general purpose of the driver's license statute is to prevent reckless or negligent drivers from operating their vehicles on public highways. Frank, 94 Wn. App. at 311. The Frank court said that the meaning of `shall' depends on the intent of the statute, which in turn depends in part on the objective to be accomplished: While the term `shall' is presumptively mandatory, its meaning depends on the legislative intent of the statute as a whole. . . . The meaning of the term is determined by considering (1) the terms of the act as they relate to the subject of the legislation; (2) the nature of the act; (3) the general objective to be accomplished; and (4) the consequences that would result from construing the statute in one way or another.
Frank, 94 Wn. App. at 311. Glenisky asserts while one of the statutory objectives is to get bad drivers off the road, another objective is due process, as shown by the requirement that the Department must provide the licensee with notice and opportunity to be heard through an administrative hearing.
Glenisky is correct in his assertion that an administrative revocation of a driver's license must comply with procedural due process and requires notice and an opportunity to be heard. State v. Storhoff, 133 Wn.2d 523, 527, 946 P.2d 783 (1997). Glenisky argues that due process can only be fulfilled by his participation in that administrative hearing, regardless of deadlines. Thus, the 30-day deadline to request a hearing should be treated as directive and not mandatory. But due process does not demand an unlimited time period in which a person can request a hearing. It only requires that the licensee has appropriate notice and a means to contest the revocation. See Storhoff, 133 Wn.2d at 527-28. Glenisky received notice and an opportunity to be heard through an established administrative hearing process. Strict adherence to the time limits for requesting a hearing is not in itself sufficient to cause a writ to issue. See Bock v. State, 91 Wn.2d 94, 100, 586 P.2d 1173 (1978).
Because the statute imposes a mandatory 30-day time limit, the superior court did not err in denying Glenisky's motion for a writ of mandamus.
Affirmed.
ELLINGTON and GROSSE, JJ., concur.