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Alaska Statutes.

Title 28. Motor Vehicles

Chapter 15. Drivers' Licenses

Section 189. Administrative Review of Revocation of License For Use of False Identification.

AS 28.15.189. Administrative Review of Revocation of License For Use of False Identification.

(a) A person who has received a notice under AS 28.15.187 (a) may make a written request for administrative review of the department's action. If the person's driver's license has not been previously surrendered to the department, it shall be surrendered to the department at the time the request for review is made.

(b) A request for review of the department's revocation under AS 28.15.187 shall be made within seven days after receipt of the notice under AS 28.15.187 or the right to review is waived and the action of the department under AS 28.15.187 (c) is final. If a written request for a review is made after expiration of the seven-day period, and if it is accompanied by the applicant's verified statement explaining the failure to make a timely request for a review, the department shall receive and consider the request. If the department finds that the person was unable to make a timely request because of lack of actual notice of the revocation or because of factors of physical incapacity such as hospitalization or incarceration, the department shall waive the period of limitation, reopen the matter, and grant the review request.

(c) Upon receipt of a request for review, if it appears that the person holds a valid driver's license and that the driver's license has been surrendered, the department shall issue a temporary driver's permit that is valid until the scheduled date for the review. A person who has requested a review under this section may request, and the department may grant for good cause, a delay in the date of the hearing. If necessary, the department may issue additional temporary permits to stay the effective date of its action under AS 28.15.187 (c) until the final order after the review is issued.

(d) A person who has requested a hearing under this section and who fails to appear at the hearing, for reasons other than lack of actual notice of the hearing or physical incapacity such as hospitalization or incarceration, waives the right to a hearing. The determination of the department that is based upon the officer's report becomes final.

(e) Notwithstanding AS 28.05.141 (b), the hearing under this section shall be held telephonically unless the person requesting the hearing requests in writing that the hearing not be held telephonically.

(f) A review under this section shall be held before a hearing officer designated by the commissioner. The hearing officer shall have authority to

(1) administer oaths and affirmations;

(2) examine witnesses and take testimony;

(3) receive relevant evidence;

(4) issue subpoenas, take depositions, or cause depositions or interrogatories to be taken;

(5) regulate the course and conduct of the hearing;

(6) make a final ruling on the issue.

(g) The hearing for review of a revocation by the department under AS 28.15.187 shall be limited to the issue of whether the person used a driver's license as fraudulent or false identification as prohibited by AS 04.16.060 (d).

(h) The determination of the hearing officer may be based upon the sworn report of a peace officer, if the sworn report is supported by probable cause based on personal observations as required under AS 28.15.187(a). The peace officer need not be present at the hearing unless either the person requesting the hearing or the hearing officer requests in writing before the hearing that the officer be present. If in the course of the hearing it becomes apparent that the testimony of the peace officer is necessary to enable the hearing officer to resolve disputed issues of fact, the hearing shall be continued to allow the attendance of the peace officer.

(i) Upon written request of the person requesting the hearing, the hearing officer shall stay the hearing until the conclusion of related criminal proceedings. If the person requesting the hearing does not request a stay, testimony given by the person at the hearing is admissible against the person in a criminal trial.

(j) If the issue set out in (g) of this section is determined in the affirmative by a preponderance of the evidence, the hearing officer shall sustain the action of the department. If the issue is determined in the negative, the department's revocation action shall be rescinded.

(k) If the action of the department in revoking a nonresident's privilege to drive a motor vehicle is not administratively contested by the nonresident driver or if the departmental action is sustained by the hearing officer, the department shall give written notice of action taken to the motor vehicle administrator of the state of the person's residence and to any state in which that person has a driver's license.

(l) Within 30 days of the issuance of the final determination of the department, a person aggrieved by the determination may file an appeal in superior court for judicial review of the hearing officer's determination. The judicial review shall be on the record without taking additional testimony. The court may reverse the department's determination if the court finds that the department misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record.

(m) The filing of an appeal under (l) of this section or a petition for review does not automatically stay the department's order or revocation. The court may grant a stay of the order or revocation under the applicable rules of court, after a motion and hearing, and upon a finding that there is a reasonable probability that the petitioner will prevail on the merits and that the petitioner will suffer irreparable harm if the order is not stayed.