Opinion
No. 60778-2-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-03649-7, Richard McDermott, J., entered November 1, 2007.
Affirmed by unpublished per curiam opinion.
Appellant Zachary White claims he received insufficient notice of a driver's license revocation. According to White, when the Department of Licensing receives a notice of revocation returned as "undeliverable," it must resend the notice to any new address it receives after the license revocation becomes effective. Because the notice sent in this case complied with the statute and was reasonably calculated, under the circumstances, to apprise White of the action, we reject his due process argument and affirm his conviction for driving with a suspended license.
There has been a history of controversy about what the due process requirement is for notifying drivers of license revocation. Before 1989, the Court of Appeals required the Department to search its records for a driver's last known address. State v. Baker, 49 Wn. App. 778, 782, 745 P.2d 1335 (1987). The legislature implicitly overruled Baker in 1989 when it amended the statute by requiring that modification by the licensee be the "exclusive means" for establishing the address of record. Laws of 1989, ch. 337, §§ 6. The Supreme Court later held that due process is satisfied when the Department sends notice to the licensee's address of record as supplied by the licensee. State v. Rogers, 127 Wn.2d 270, 279, 898 P.2d 294 (1995). The Supreme Court has also held that under that legislative scheme, due process is not satisfied if the notice of revocation is sent to the licensee's last known address rather than the address of record. State v. Dolson, 138 Wn.2d 773, 779, 982 P.2d 100 (1999). Because the legislature put control over the notification process in the hands of the licensee, the Department's repudiation of this procedure in favor of another violated due process. Dolson, 138 Wn.2d at 779-80.
The legislature modified the statute again after Dolson. In its present form, an address can be updated by various means, including written notification or "other means as designated by rule of the department." RCW 46.20.205(1). The applicable Department rules provide that the Department may change a license holder's address of record upon receipt of written documentation or electronic communication concerning the driver "where such documentation or communication includes an address that differs from the one maintained by the department and is: (i) signed by the driver . . .; (ii) filed at the request of the driver . . .; (iii) filed by a public official or governmental agency." WAC 308-104-018(1)(b). The Supreme Court has addressed this new statute and rule, and has held that the Department is authorized to update a driver's address of record based on a traffic ticket because the ticket is written documentation that is signed by the driver and filed by a government agency. City of Redmond v. Arroyo-Murillo, 149 Wn.2d 607, 613, 70 P.3d 947 (2003).
The next case in which the Supreme Court addressed the issue was State v. Nelson, 158 Wn.2d 699, 147 P.3d 553 (2006). In Nelson a driver was arrested for driving under the influence. His license was suspended. Nelson remained in custody at a rehabilitation facility for four months. While there, Nelson sent the Department an inquiry asking how he could have his driver's license reinstated. Two months later, while Nelson was still in custody, the Department sent an order revoking his driver's license by certified mail to Nelson's residential address. The notice of revocation was returned as "unclaimed" several days after Nelson was released from custody. But the license revocation had already become effective at this point. Nelson challenged his conviction for driving with a suspended license on the grounds that the notice he received, to be constitutionally sufficient, should have been sent to the rehabilitation facility because the Department had actual knowledge that he was there.
The Supreme Court affirmed Nelson's conviction after considering Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006) (taxpayer received insufficient notice of property tax delinquency when two notices mailed to the address maintained in state records were returned "unclaimed" and state took no additional steps to notify the taxpayer before selling his property). "The Jones decision instructs us `to consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case.'" Nelson, 158 Wn.2d at 704 (citing Jones, 126 S. Ct. at 1716). The Court concluded that, unlike the situation in Jones, the government did not know that the notice sent to Nelson's address of record was ineffective until after the revocation became operative. Further, because the rehabilitation facility was only a temporary detainment facility, the Court determined that the inquiry Nelson sent while in custody did not put the Department on notice that Nelson would still be there two months later when it sent the order of revocation to his residential address. The Court noted that by the time the Department learned that Nelson did not receive the notice, he had already been released from the rehabilitation facility. Under these circumstances, the Court held that the Department's failure to take additional steps to put Nelson on notice was reasonable. The Department was not required to track down Nelson once he was released from the rehabilitation facility. Such an open-ended search for a new address imposes too great a burden on the Department. Nelson, 158 Wn.2d at 705.
This case is similar to Nelson. Between September 1997 and May 2000, White was found guilty of driving with a suspended license on five separate occasions. On this basis, the Department of Licensing determined that White was a habitual traffic offender and revoked his driving privileges for seven years under RCW 46.65.070. The Department issued a notice of the order on September 18, 2000. The Department was required by statute to send the notice to White's address of record via certified mail:
Whenever a person's driving record, as maintained by the department, brings him or her within the definition of an habitual traffic offender, as defined in RCW 46.65.020, the department shall forthwith notify the person of the revocation in writing by certified mail at his or her address of record as maintained by the department.
RCW 46.65.065(1). In compliance with the statute, the Department sent the notice to White's address of record, which was on Jovita Boulevard in Edgewood, on September 18, 2000. The Department obtained this address in September 1997 on one of the occasions when White received a traffic citation for driving with a suspended license and the record shows that it had not been updated at any time since then. The notice of revocation was returned to the Department as "not deliverable as addressed — unable to forward." The revocation became effective October 18, 2000.
Six years later, on May 2, 2006, White had the run-in with police that led to the present appeal. Initially the State charged him with attempting to elude a pursuing police vehicle. The information was later amended to include count two, driving with a suspended or revoked license in the first degree. White moved to dismiss count two on the grounds that he received constitutionally insufficient notice of license revocation. He argued that the Jovita Boulevard address, to which the Department sent the notice of revocation on September 18, 2000, may not have been the proper address of record because he had received at least four separate traffic citations between September 1997 and the September 2000 notice of revocation and any one of these could have resulted in an updated address. White could not, however, establish that any of these traffic citations resulted in an address of record other than the address on Jovita Boulevard. The trial court denied White's motion to dismiss and a jury convicted White of both charges. White appeals.
On appeal White argues that the Department should have resent his notice of revocation to new addresses it obtained for White several years after his license revocation became effective in October 2000. The record reflects that White's license was revoked and his address of record was updated in September 2002 to 1st Avenue in Kent based on a traffic citation received on July 27, 2002. It was updated again in 2005 to 122nd Avenue in Auburn based on an application for ID. His address of record was changed electronically by the court in April 2006 to 2nd Avenue South in Algona and again in May 2006 to the same Algona address but with a different zip code based on a license or ID card update for a duplicate ID.
A driver's license is a property interest protected by the due process clauses of the United States and Washington Constitutions. Before a driver's license may be revoked, the government must provide the licensee with notice and opportunity for hearing appropriate to the nature of the case. However, due process does not require that a property owner receive actual notice before the government may take his property. Instead, the notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Notice is reasonably calculated if the means employed are such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The State bears the burden of proving that a driver's license revocation complied with due process. Nelson, 158 Wn.2d at 702-03. We review this constitutional claim de novo. Nelson, 158 Wn.2d at 702.
The parties agree that the State complied with the statutory requirements for providing notice of a driver's license revocation. But White asserts an as-applied challenge, arguing that the Department violated due process under the particular circumstances of his case because the notice of revocation was not reasonably calculated to apprise him of the revocation. An as-applied challenge is characterized by a party's allegation that application of the statute in the specific context of the party's actions or intended actions is unconstitutional. City of Redmond v. Moore, 151 Wn.2d 664, 668-69, 91 P.3d 875 (2004). Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated. Moore, 151 Wn.2d at 669.
The question presented here is whether due process required the Department to remain aware that the notice of revocation sent to White in 2000 had been returned as undeliverable, to watch for any new addresses that might appear for White after the revocation became effective, and if any did appear, then to resend the notice of revocation to White at those new addresses. We disagree. As in Nelson, knowledge that the driver has not received a notice of revocation does not impose upon the Department an open-ended duty to keep searching for a better address. Here, the Department complied with the statutory requirement to notify White at his address of record of the pending revocation. He did not respond and the revocation became effective. When White was cited on July 27, 2002 for driving with a suspended license, he learned that his license was suspended, yet he did nothing about it. With respect to his present conviction for driving with a suspended license in May 2006, no additional purpose would have been served by the Department sending him an updated notice of the revocation that occurred 2000. The trial court properly concluded that White's notice of revocation complied with procedural due process requirements and we also reject the applied challenge he argues on appeal.
At the same trial, White was also convicted of attempting to elude the officer who stopped him in May 2006. The trial court allowed the State to introduce evidence of the October 2000 license revocation to show that White had a motive to run from the police. Having decided that White received sufficient notice of the revocation, it is unnecessary to address the issue he raises about whether the evidence of revocation should have been excluded from consideration in connection with the charge of attempting to elude.
Affirmed.