Louis P. Trutman, Respondent V. State Of Wa, Dept. Of Licensing, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
LOUIS P. TRUTMAN, No. 46341-5-II
Respondent, UNPUBLISHED OPINION
v.
STATE, DEPARTMENT OF LICENSING,
Petitioner.
BJORGEN, C.J. — We accepted discretionary review of a superior court order reversing
the Washington State Department of Licensing’s (Department’s) decision to suspend Louis
Trutman’s personal driver’s license and disqualify his commercial driver’s license. The
Department contends that the administrative hearing examiner correctly admitted as evidence a
law enforcement officer’s unsworn report establishing reasonable grounds to believe that
Trutman was driving while under the influence of alcohol. Thus, the Department argues the
superior court erred by reversing the Department’s decision on that basis. Under our recent
opinion in Watkins v. Department of Licensing, 187 Wn. App. 591, 349 P.3d 946 (2015), the
hearing examiner properly admitted the officer’s unsworn report. Accordingly, we vacate the
superior court’s order of reversal and remand for reinstatement of the Department’s final order
revoking Trutman’s driving privileges.
Filed
Washington State
Court of Appeals
Division Two
August 9, 2016

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FACTS
On July 9, 2013, Washington State Patrol (WSP) Sergeant David Bangart saw a vehicle
using a center turn lane to pass other vehicles. Bangart stopped the vehicle and spoke with the
driver, Trutman. While speaking with Trutman, Bangart detected the odor of intoxicants.
Trutman admitted to consuming three or four beers. After Trutman performed field sobriety
tests, WSP Trooper R. I. Howson arrived and placed him under arrest.
After transporting Trutman to the WSP office, Howson advised Trutman of his implied
consent rights with regard to performing a breath test. Trutman agreed to submit to a breath test,
which showed his blood alcohol concentration was over the legal limit for operating a motor
vehicle.
On July 16, Howson faxed his arrest report to the Department. Howson attached to his
arrest report Bangart’s unsigned1 investigation report, which included a narrative of the
circumstances leading to Trutman’s arrest. On July 24, the Department sent Trutman notices that
it would suspend his personal driver’s license for 90 days and would disqualify his commercial
driver’s license for one year. The notices informed Trutman of his right to contest the
suspension/disqualification by requesting an administrative hearing. Trutman requested an
administrative hearing. Relevant to this appeal, Trutman argued at the hearing that the
Department’s proposed actions should be rescinded because “Trooper Bangor’s [sic] narrative is
not properly certified and therefore should be suppressed and without his report there is
1 The Order Granting Discretionary Review states that Bangart’s electronic signature does appear
on the report in the area for the officer’s printed name, but not in association with the statement,
“I certify (or declare) under penalty of perjury under the laws of the State of Washington that this
report is true and correct (RCW 9A.72.085).” Clerk’s Papers (CP) at 75. Because we decide this
appeal under Watkins, we assume without deciding that this signature was not an effective
certification.

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insufficient evidence of a lawful stop and insufficient probable cause for arrest.” Clerk’s Papers
(CP) at 23.
On October 23, a hearing officer entered findings of fact, conclusions of law, and an
order sustaining the Department’s determination that Trutman’s driving privileges be suspended.
Regarding Trutman’s contention with the admission of Bangart’s investigation report, the
hearing officer concluded:
Sergeant Bangart’s report is admissible because it accompanies Trooper
Howson’s certified report. See, RCW 46.20.308. Further, WAC 448-103-120
provides that the Hearing Officer determines admissibility and weight to be given
evidence. The report was created by a trained officer in the course of his duty. The
documentary evidence submitted here by the officer is reliable. The officer
contemporaneously recorded the significant details, including significant times,
locations, and events and much of it is corroborated by Trooper Howson.
[Trutman] has the ability to submit evidence and call witnesses to contradict the
information contained in the report. The report will be considered in determining
the lawfulness of the initial detention.
CP at 26. Trutman moved for reconsideration of the final order revoking his driving privileges,
which motion the hearing examiner denied.
Trutman appealed to the superior court. The superior court reversed the Department’s
decision to revoke Trutman’s driving privileges, concluding that the October 23 order “contained
an error of law in that it relied upon an unsworn report to establish probable cause for the arrest.”
CP at 115. The Department moved for discretionary review of the superior court’s order
reversing its decision to revoke Trutman’s driving privileges, which motion we stayed pending
our decision in Watkins. Following publication of our opinion in Watkins, a commissioner of
this court lifted the stay and granted discretionary review. 187 Wn. App. 591.
ANALYSIS
I. STANDARD OF REVIEW AND GOVERNING LEGAL PRINCIPLES
Watkins sets out the applicable standard of review and relevant legal principles:

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The implied consent statute governs our review of the Department’s order.
Former RCW 46.20.308(9) [(December 6, 2012)]; Cannon v. Dep’t of Licensing,
147 Wash.2d 41, 48, 50 P.3d 627 (2002). The implied consent statute generally
provides that a driver is deemed to have consented to a blood or breath test if at the
time of his arrest, the arresting officer has reasonable grounds to suspect that the
driver was operating a motor vehicle under the influence. Former RCW 46.20.308.
. . . The purpose of the implied consent statute is to “‘insure swift and certain
punishment for those who drink and drive,’” and “free Washington roads of drivers
who take the wheel under the influence of alcohol or controlled substances.” State
v. Vasquez, 148 Wash.2d 303, 315, 59 P.3d 648 (2002) (quoting former RCW
46.20.308 Historical and Statutory Notes, “Legislative finding, intent—1983 ch.
165” at 387).
We review the Department’s administrative decisions “from the same
position as the superior court.” Clement v. Dep’t of Licensing, 109 Wash. App.
371, 374, 35 P.3d 1171 (2001). We review errors of law de novo and findings of
fact for substantial evidence. See Lynch v. Dep’t of Licensing, 163 Wn. App. 697,
705, 262 P.3d 65 (2011).
The issue on appeal concerns interpretation of the implied consent statute.
Interpretation of a statute is a question of law that we review de novo. Grey v.
Leach, 158 Wash. App. 837, 844, 244 P.3d 970 (2010). When interpreting a statute,
we seek to ascertain the legislature’s intent. Dep’t of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Where a statute’s meaning is plain
on its face, we give effect to that meaning as expressing the legislature’s intent.
[Campbell,] 146 Wash.2d at 9-10.
87 Wn. App. at 596-97.
II. ADMISSION OF BANGART’S UNSIGNED INVESTIGATION REPORT
The Department contends that the hearing examiner properly admitted and considered
Bangart’s investigation report to establish the officers’ reasonable grounds to believe that
Trutman was driving under the influence of alcohol.2 Thus, the Department argues that the
2 Former RCW 46.20.308(1) (December 6, 2012) provides in relevant part:
Any person who operates a motor vehicle within this state is deemed to have given
consent . . . to a test or tests of his or her breath or blood for the purpose of
determining the alcohol concentration . . . in his or her breath or blood if arrested
for any offense where, at the time of the arrest, the arresting officer has reasonable
grounds to believe the person had been driving or was in actual physical control of
a motor vehicle while under the influence of intoxicating liquor.

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superior court erred by reversing the order of suspension and disqualification based on admission
of the investigation report. We agree, vacate the superior court’s order of reversal, and remand
for reinstatement of the Department’s final order.
Watkins controls our resolution of this appeal. In that case we held that an officer’s
uncertified report is admissible in a license revocation hearing under former RCW 46.20.308 if
the uncertified report accompanies another officer’s certified report. Watkins, 187 Wn. App. at
601-02. In so holding, we relied on language in Department of Licensing v. Cannon, 147 Wn.2d
41, 51, 50 P.3d 627 (2002), stating:
“At the hearing, the law enforcement officer’s sworn [or certified] report is prima
facie evidence of a valid arrest and compliance with the requirements of the implied
consent statute. The sworn [or certified] report and any other evidence
accompanying it, as well as certifications authorized by the criminal rules for courts
of limited jurisdiction, are admissible at the hearing without further evidentiary
foundation.”
Watkins, 187 Wn. App. at 601 (internal citation omitted) (emphasis added) (quoting Cannon, 147
Wn.2d at 51).
Here, as in Watkins, Bangart’s uncertified investigation report accompanied Howson’s
certified arrest report. 187 Wn. App. at 601. Howson’s certified report stated, “I certify . . .
under penalty of perjury . . . that the foregoing and the accompanying reports/copies of
documents and the information contained therein are true, correct, and accurate.” CP at 67.
Accordingly, the hearing examiner did not err by concluding that Bangart’s uncertified report
was admissible and, consequently, the superior court erred by concluding otherwise.
Trutman does not attempt to distinguish this case from Watkins, and instead relies on
Nirk v. Kent Civil Service Commission, 30 Wn. App. 214, 633 P.2d 118 (1981), to argue that
admission of the uncertified investigation report violated his due process rights. However, we
rejected this same argument in Watkins and, in doing so, held that Nirk was distinguishable after

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consideration of the factors set forth in Matthews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893,
47 L. Ed. 2d 18 (1976). 187 Wn. App. at 603-04. Because we have already rejected this same
due process argument in Watkins after fully considering the Matthews factors, we need not
readdress the issue. Because the hearing examiner properly admitted and relied on Bangart’s
uncertified investigation report, we vacate the superior court’s order of reversal.
III. BREATH TEST CERTIFICATION NOT AT ISSUE
Trutman contends that the hearing examiner erred by failing to suppress his breath test
results because Howson failed to check a box on his arrest report verifying his certification to
administer breath tests. Because Trutman did not seek cross review of this issue by timely filing
a notice of discretionary review as required under RAP 2.4(a), we do not address it here.
The Department’s motion for discretionary review presented the two following issues:
1. Consistent with the plain language of the implied consent law and the
Department’s relaxed rules of evidence, did the Department’s hearing officer
properly admit Trooper Bangart’s narrative report, which accompanied the signed
certified report?
2. Was Trooper Bangart’s failure to sign the report in the appropriate place a
technical deficiency that should not defeat the Department’s case?
Motion for Discretionary Review at 3. A commissioner of this court granted discretionary
review as to these issues, concluding that the superior court’s decision to reverse the
Department’s license revocation order conflicted with our opinion in Watkins. The
commissioner did not grant review on the issue of Howson’s breath test certification.
If Trutman wanted this court to review the hearing examiner’s revocation decision on this
alternative basis, he must have sought cross review of that issue under RAP 2.4(a), which
provides in relevant part:
The appellate court will grant a respondent affirmative relief by modifying
the decision which is the subject matter of the review only (1) if the respondent also

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seeks review of the decision by the timely filing of a . . . notice of discretionary
review, or (2) if demanded by the necessities of the case.
(Emphasis added.) Trutman did not file a notice of discretionary review, and review of this issue
is not demanded by the necessities of the case. Trutman did not raise the issue in either his
response to the Department’s motion for discretionary review or in his supplemental brief
addressing the Department’s motion for discretionary review. Accordingly, we do not address it.
We vacate the superior court’s order of reversal and remand for reinstatement of the
Department’s final order revoking Trutman’s driving privileges.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
BJORGEN, C.J.
We concur:
JOHANSON, J.
MAXA, J.