The State of Washington, Respondent, v. Mark P. Nelson, Petitioner, 158 Wash. 2d 699

¶[1 Owens, J. Petitioner Mark P. Nelson seeks reversal of his conviction for driving with a suspended or revoked driver’s license in the first degree. Nelson argues the conviction should be reversed because the Department of Licensing (DOL) revoked his driver’s license without providing constitutionally sufficient notice. We affirm Nelson’s conviction because DOL’s process for revoking Nelson’s driver’s license was reasonably calculated to put Nelson on notice of the pendency of the revocation and, therefore, provided Nelson with adequate procedural due process.

FACTS ¶2 On December 10, 2000, Nelson was stopped for driving under the influence. His driver’s license was suspended because he refused to take a breath test. From December 10, 2000, until April 12, 2001, Nelson was in custody at the King County North Rehabilitation Facility (NRF). On January 3, 2001, while at the NRF, Nelson sent an inquiry to DOL asking for information about how Nelson could have his driver’s license reinstated.

Thereafter, on March 16, 2001, after determining that Nelson was an habitual traffic offender, DOL sent an order of revocation by certified mail to Nelson’s address of record, which was a residence in Kirkland. The order provided that Nelson’s license was revoked for seven years. The revocation was effective as of April 15, 2001, three days after Nelson was released from the NRF.

On April 16, 2001, four days after Nelson’s release from the NRF, the order of revocation was returned “unclaimed” to the DOL mail room. ¶3 Subsequently, on June 11, 2002, Nelson was arrested for driving with a suspended or revoked driver’s license in the first degree. This charge requires the State to prove that the defendant is an habitual traffic offender. RCW 46-.20.342(l)(a). To satisfy this requirement, the State relied on the order of revocation sent on March 16, 2001. King County District Court found Nelson guilty as charged.

Nelson appealed to King County Superior Court, which affirmed Nelson’s conviction. Division One of the Court of Appeals denied discretionary review. We granted discretionary review. ISSUE ¶4 Did DOL deprive Nelson of procedural due process when it sent notice of Nelson’s driver’s license revocation only to Nelson’s address of record and not to the NRF, where DOL knew that Nelson had previously been incarcerated? ANALYSIS ¶5 Standard of Review. Nelson claims that DOL failed to provide procedural due process when it revoked his driver’s license. We review this constitutional challenge de novo.

See City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004). ¶6 Procedural Due Process. A driver’s license is a property interest protected by the due process clauses of the United States and Washington Constitutions. State v. Dolson, 138 Wn.2d 773, 776-77, 982 P.2d 100 (1999) (citing Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)). Thus, 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.’” Olympic Forest Prods., Inc. v.

Chaussee Corp., 82 Wn.2d 418, 422, 511 P.2d 1002 (1973) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950)). However, “[d]ue process does not require that a property owner receive actual notice before the government may take his property.” Jones v. Flowers, 547 U.S. 220, 226, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006).

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.’ ” Id. at 226 (quoting Mullane, 339 U.S. at 314); see also City of Redmond v. Arroyo-Murillo, 149 Wn.2d 607, 612, 70 P.3d 947 (2003). Notice is reasonably calculated if “ ‘[t]he means employed [are] such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.’ ” Jones, 547 U.S. at 229 (first alteration in origin1l) (quoting Mullane, 339 U.S. at 315).

The State bears the burden of proving that a driver’s license revocation complied with due process. Arroyo-Murillo, 149 Wn.2d at 612. ¶7 The State argues that it satisfied due process requirements because it followed the statutory requirements for providing notice of a driver’s license revocation.

The revocation proceeded pursuant to the following statute: Whenever a person’s driving record, as maintained by the department, brings him or her within the definition of an habitual traffic offender. . . 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) (emphasis added). The State claims that compliance with this statutory notice requirement provided Nelson with sufficient procedural due process.

For this proposition, the State relies on this court’s statement that “[t]o establish a violation of due process, Defendants must at least allege that the incorrect DOL revocation notices deprived them of notice and/or an opportunity to be heard.” State v. Storhoff, 133 Wn.2d 523, 527, 946 P.2d 783 (1997); see also State v. Perry, 96 Wn. App. 1, 5, 975 P.2d 6 (1999) (per curiam). Nelson concedes that the State followed the statutory procedures for license revocations.

However, despite statutory compliance, Nelson argues that the notice violated due process because it was not reasonably calculated to inform him of the pendency of the revocation. ¶8 We agree with Nelson that the State’s statutory compliance does not preclude Nelson from bringing this as-applied procedural due process challenge. See Jones, 547 U.S. at 229-31. In Jones, the State of Arkansas mailed two certified notices of property tax delinquency to the address maintained for Jones in the State’s records. Id. at 223-24. Both letters were returned “unclaimed.” Id. Ultimately, the property at issue was seized.

Id. at 224. Jones contested the seizure, claiming that the State’s failure to provide adequate notice of his right to redemption deprived him of due process. Id. Despite compliance with Arkansas’ statutory notice provision, the Court held that “when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” Id. at 225.

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.” Id. at 230; see also Robinson v. Hanrahan, 409 U.S. 38, 38-39, 93 S. Ct. 30, 34 L. Ed. 2d 47 (1972) (holding that notice of a property forfeiture was inadequate despite compliance with Illinois’ forfeiture statute because the State knew that the appellant was incarcerated at the time the notice was sent) (per curiam); Covey v. Town of Somers, 351 U.S. 141, 146-47, 76 S. Ct. 724, 100 L.

Ed. 1021 (1956) (holding that statutorily compliant notice of a tax foreclosure did not provide procedural due process because the State knew that the recipient was incompetent and that no guardian had been appointed). ¶9 Considering the unique circumstances of the present case, we hold that the notice DOL sent to Nelson’s address of record was sufficient to satisfy the demands of due process.

In the cases discussed above, the Court found that the notice was inadequate because the State had actual knowledge that the notice would be ineffective and failed to take practicable additional steps to provide effective notice. Unlike in Jones, Robinson, and Covey, in the present case, the State did not know that the notice sent to Nelson’s address of record was ineffective until after the revocation became operative.

Moreover, because the NRF is only a temporary detainment facility, the inquiry that Nelson sent in January 2001 did not put DOL on notice that Nelson would still be at the NRF in March 2001 when it sent the order of revocation to Nelson’s address of record. In addition, by the time the State learned that Nelson had not received the notice, Nelson had already been released from the NRF. Under these circumstances, DOL’s failure to take additional steps to put Nelson on notice was reasonable. DOL was not required to track down Nelson once he was released from the NRF.

Such “[a]n open-ended search for a new address” imposes too great a burden on DOL. Jones, 547 U.S. at 236. Accordingly, we reject Nelson’s as-applied due process challenge and affirm Nelson’s conviction. CONCLUSION ¶10 Considering the unique circumstances of the present case, we hold that the notice sent to Nelson’s address of record was reasonably calculated to provide Nelson with notice of the pendency of his driver’s license revocation. Accordingly, we reject Nelson’s as-applied procedural due process challenge and affirm Nelson’s conviction for driving with a suspended or revoked license in the first degree.

Alexander, C.J., and Madsen, Bridge, and Fairhurst, JJ., concur. f 11 A licensee has the obligation to update his or her “address of record” with the DOL. RCW 46.20.205(1). Because we resolve this case in the State’s favor without the need for supplemental evidence, we do not consider the State’s motion to supplement the record or Nelson’s motion to strike the additional evidence provided in the State’s briefing.