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Javed v. DMV (7/26/96), 921 P 2d 620
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
TARIQ JAVED, )
) Supreme Court No. S-6296
) Superior Court No.
v. ) 3AN-93-00458 CI
DEPARTMENT OF PUBLIC SAFETY, ) O P I N I O N
DIVISION OF MOTOR VEHICLES, )
STATE OF ALASKA, )
Appellee. ) [No. 4375 - July 26, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karl S. Johnstone, Judge.
Appearances: Charles W. Coe, Anchorage, for
Appellant. Eric A. Johnson, Dianne Olsen,
Assistant Attorneys General, Anchorage, Bruce
M. Botelho, Attorney General, Juneau, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti,
Justice pro tem.
On September 12, 1992, Anchorage Police Officers Cul-
breth, Dash, and Norsworthy responded to a complaint concerning a
disturbance at 3800 Arctic Boulevard. Upon arriving, they found
Tariq Javed tied to a post on the property. Javed appeared to be
intoxicated. The officers interviewed the three other citizens
Chevelle Carrington told Officer Culbreth that she was
driving on 36th Avenue when Javed pulled up next to her and began
to flirt with her. She said that Javed cut her off twice and
followed her into the parking lot at 3800 Arctic. She said that he
then got out of the car, yelled at her, and drove off, only to come
back to the parking lot on foot a few minutes later.
Officer Culbreth also interviewed Donald Thompson.
Thompson stated that he saw Javed yell at Carrington, drive away,
and then return.
Officer Dash interviewed Jerome Workman. Workman said
that Javed parked his car in the parking lot at 3800 Arctic, got
out of his car, and began harassing Carrington. Workman stated
that he told Javed to leave. Workman stated that Javed parked his
car across the street and walked back to the property. (EN1)
Workman said that he then detained Javed and placed him under
The police officers arrested Javed for trespass and
driving while intoxicated (DWI). Javed admitted drinking but
repeatedly denied driving. The officers searched Javed but did not
find any car keys. An intoximeter test showed that Javed's blood
alcohol level was above the legal limit.
In the license revocation proceedings, Javed's defense
was that he had not been driving. According to Javed, he had
become intoxicated while visiting the home of a friend, Muhammad
Malik. Malik started to drive Javed home in Javed's car. Malik
and Javed got into an argument near 36th Avenue and Arctic. Malik
parked the car, took Javed's keys, and walked away. Javed walked
into the parking lot at 3800 Arctic, where he became involved in an
altercation with Carrington, Thompson and Workman, who ultimately
tied him to a post. Malik testified at the revocation proceedings,
corroborating Javed's testimony.
Javed's license revocation proceedings were broken up
into three hearings. Officers Culbreth and Dash testified, over
repeated objections by Javed, about the statements made to them by
Carrington, Thompson, and Workman. A written statement by Workman
and written reports describing the statements made by Carrington,
Thompson, and Workman were included in Officer Dash's arrest
report, which was part of the record before the hearing officer.
Javed requested that all witnesses be subpoenaed. After the second
hearing, the hearing officer subpoenaed the civilian witnesses.
The testimony of the civilian witnesses was never taken at the
third hearing, however, because Carrington and Thompson arrived
late, after the hearing had been closed, and Workman did not appear
The hearing officer affirmed the license revocation,
stating, "The law does not require the officer [to] see the person
drive, only to have reasonable grounds to believe that the person
drove. I believe reasonable grounds exist in this situation."
Javed appealed to the superior court, which affirmed without
opinion. Javed then appealed to this court.
In his briefing, Javed asserted essentially that the
hearing officer improperly relied upon hearsay evidence and denied
him the right to confront and cross-examine witnesses. The State
argued that the hearing officer found substantial evidence that the
arresting officers had reasonable grounds to believe that Javed had
been driving, and that the revocation was therefore lawful.
This court sua sponte ordered supplemental briefing to
address the following issues:
(1) Where the accused at an administra-
tive license revocation hearing has presented
evidence that he did not drive, does the due
process clause of the Alaska Constitution
permit the hearing officer to suspend the
driver's license of the accused without
finding that a preponderance of admissible
evidence shows that the accused actually drove
or operated his vehicle?
(2) If due process does require the
hearing officer to find that the accused
actually drove, is AS 28.15.166(g) [limiting
the scope of the hearing to whether the
officer had reasonable grounds to believe the
accused was DWI] unconstitutional? Or can the
constitutionality of AS 28.15.166(g) be saved
by construing it to permit an inquiry by the
hearing officer into whether the accused
actually drove? If AS 28.15.166(g) is given
such a saving construction, what sort of
inquiries will it continue to prohibit?
(3) If AS 28.25.166(g) is unconstitu-
tional, is it severable from the rest of AS
Having considered the initial and supplemental briefs of
the parties we conclude as follows: (1) where there is an issue as
to whether the accused was driving, due process requires an inquiry
into that issue before the driver's license of the accused may be
suspended; (2) as written, AS 28.15.166(g) prohibits such an
inquiry; (3) the limiting language in AS 28.15.166(g) is therefore
unconstitutional as applied to cases where there is an issue as to
whether the accused was driving; and (4) as the hearing officer did
not consider the question whether Javed was driving, this case must
be remanded for a new hearing at which that issue must be
Due Process Requires an Inquiry into Whether a Licensee
Was Actually Driving a Vehicle before a Driver's License
May Be Suspended.
A driver's license represents an important property
interest which is protected under the due process clause of the
Alaska Constitution. Haynes v. State, Dep't of Public Safety, 865
P.2d 753, 756 (Alaska 1993); Graham v. State, 633 P.2d 211, 216
(Alaska 1981). We have held that licensees are entitled to a
"meaningful hearing"before their driver's licenses may be revoked
or suspended. Graham, 633 P.2d at 216.
In examining whether a hearing is a meaningful one, we
are guided by "considerations of fundamental fairness." Thorne v.
State, Dep't of Public Safety, 774 P.2d 1326, 1329 (Alaska 1989)
(quoting Whisenhunt v. State, Dep't of Public Safety, 746 P.2d
1298, 1300 (Alaska 1987)). For example, the denial of an
opportunity at an administrative revocation hearing to challenge
the reliability and credibility of the breath test operates as a
denial of a meaningful and fundamentally fair hearing. Champion v.
State, Dep't of Public Safety, 721 P.2d 131, 133 (Alaska 1986)
(holding failure to take reasonable steps to preserve breath sample
violates due process). We have written that a meaningful hearing
"would require the presence of the arresting officer, the
production of the report of the arresting officer and any tape
recordings, videotapes, or transcripts concerning events
surrounding the arrest, and the presence of witnesses having
evidence to offer on contested points." Graham, 633 P.2d at 216
n.12. Also, in order for results of a breath test to be admissible
at an administrative revocation hearing, the State must preserve
the breath test sample or give the driver an opportunity to obtain
an independent test, Briggs v. State, Dep't of Public Safety, 732
P.2d 1078, 1080 (Alaska 1987), and the driver must be given a
reasonable opportunity to consult with an attorney before being
required to take the test, Whisenhunt v. State, Dep't of Public
Safety, 746 P.2d 1298 (Alaska 1987).
We emphasized that driving is an important privilege
which commands meaningful safeguards in Whisenhunt, where we
extended criminal procedural safeguards to the administrative
revocation context. 746 P.2d at 1298. We noted that in DWI cases,
"license revocation is often the most important and long-lasting
sanction imposed on the defendant. . . . Driving is such an
important privilege in our society that license revocation alone
can reasonably be regarded as a significant sanction." Id. at
1299. We have thus rejected a formal distinction between civil and
criminal proceedings when considerations of fundamental fairness
are involved. Id. at 1300; Champion, 721 P.2d at 133.
Alaska Statute 28.15.165 requires the administrative
revocation of driver's licenses by the Department of Public Safety
for drivers who fail a chemical sobriety test or who refuse to
submit to such a test. Alaska Statute 28.15.166 allows
administrative review of such a revocation. Subsection (g) of AS
28.15.166 limits the scope of the hearing officer's inquiry at a
The hearing for review of action by the
department under AS 28.15.165 shall be limited
to the issues of whether the law enforcement
officer had reasonable grounds to believe that
the person was operating a motor vehicle or
commercial motor vehicle that was involved in
an accident causing death or serious physical
injury to another, or that the person was
operating a motor vehicle, commercial motor
vehicle, or aircraft while intoxicated in
violation of AS 28.33.030 or AS 28.35.030 and
(1) the person refused to submit to a
chemical test authorized under AS 28.33.031(a)
or AS 28.35.031(a) or (g) after being advised
that refusal would result in disqualification
or the suspension, revocation, or denial of
the person's license, privilege to drive, or
privilege to obtain a license, and that the
refusal is a misdemeanor;
(2) the chemical test administered under
AS 28.33.031(a) or AS 28.35.031(a) or (g)
produced a result described in AS
(3) the chemical test administered under
AS 28.33.031(a) produced a result described in
Javed's argument is simple and persuasive: a hearing
which is statutorily limited to the reasonableness of the arresting
officer's beliefs at the time of arrest is not necessarily
meaningful or fundamentally fair. Revocation is not fair if the
accused can demonstrate that he was not driving, regardless of the
reasonable beliefs of the arresting officer.
We noted in Thorne that the accused at a revocation
hearing "must be granted the opportunity to fully contest issues of
'central importance' to the revocation decision." 774 P.2d at 1331
(quoting Champion, 721 P.2d at 133). In Thorne, that meant that
the State had the duty to preserve a videotape of the accused
performing sobriety tests so that Thorne could contest whether the
arresting officer had reasonable grounds to believe he had been
DWI. 774 P.2d at 1331-32.
It is hard to imagine an issue of more "central
importance"to a driver's license revocation hearing than whether
the person accused of DWI was driving a vehicle in the first place.
Intoxication alone may not justify the revocation of a driver's
license. The State concedes that where a licensee takes and fails
a breath test, "it would be irrational to revoke his license unless
he was in fact driving when he was arrested."
Yet this is precisely what might happen where the
evidence that the arrestee was driving is examined only from the
perspective of the arresting officer at the time of the arrest. It
is plausible that an officer might have unquestionably reasonable
grounds to believe that a person was driving, but evidence
presented by the arrestee later demonstrates that the officer was
mistaken. Under the terms of AS 28.15.166(g), the later evidence
may not be considered, and the license of a person who was not
driving will be suspended.
Due process requires that an arrestee who fails a breath
test must be afforded the opportunity at an administrative
revocation hearing to present evidence that he was not driving in
order to make that hearing meaningful and fundamentally fair. (EN2)
This court has previously implicitly allowed inquiries
outside the literal scope of subsection .166(g) when due process
required them. See Champion, 721 P.2d at 133 (allowing driver
opportunity to test credibility of breathalyzer); Whisenhunt, 746
P.2d at 1299 (excluding test results where right to consult
attorney violated); Graham, 633 P.2d at 216 n.12 (holding that
meaningful hearing requires presence of witnesses having evidence
to offer on contested points). These cases generally assume that
the inquiries will help to determine that a person who is accused
of driving while intoxicated was actually intoxicated. But it is
equally important to ensure a meaningful hearing where the person
claims not to have been actually driving.
Alaska Statute 28.15.166(g) Prohibits an Inquiry into
Whether the Accused Was Driving.
The State argues that this court should construe
subsection .166(g) in a way that would save its constitutionality
and allow an inquiry into whether the arrestee actually drove. We
believe that to do so would impermissibly rewrite the statute.
The substance of the State's argument is two-fold:
first, that the legislature did not intend the restricting language
of subsection .166(g) to apply to revocation proceedings where the
arrestee took and failed a breath test; second, and alternatively,
that the reference in subsection .166(g) to the implied consent
statutes, AS 28.33.031(a) and AS 28.35.031(a) and (g), requires an
inquiry into whether such consent was actually given, which in turn
might require an inquiry into whether the person actually drove.
The first line of analysis offered by the State fails.
The State cannot point to any evidence that the legislature
intended the limitation not to apply when it amended the statute in
1983 to include failure of a breath test as grounds for license
revocation. See ch. 77, 3, SLA 1983. It boldly speculates that
"the legislature must have intended to alter this limitation"and
concludes that "nothing other than mere inadvertence can explain
the legislature's failure to require proof of this fact [that the
person was the driver]."
Yet even if this tenuous supposition is correct, we can
find no textual basis for a reading which could allow an inquiry
into whether a person drove. The statute is clear: the scope of
the hearing is limited to (1) whether the officer had reasonable
grounds to believe that the person was DWI, and (2) whether the
person either refused to take a breath test or took a breath test
and failed it. AS 28.15.166(g). We cannot interpret an inquiry
expressly limited by statute to the reasonableness of an officer's
beliefs to include an examination of the objective truthfulness of
the officer's conclusion.
The State's second suggested reading fares no better.
The suggestion is that the statute limits the scope of the hearing
to whether the officer had reasonable grounds to believe that the
person was DWI and to whether the person refused to take a test
"authorized under"the implied consent statutes or the person
submitted to a test "administered under"the implied consent
statutes. The statute might, then, be read in such a way as to
include an inquiry into whether the implied consent statutes were
actually triggered, i.e., whether the test given or refused was
actually administered or authorized under those statutes. If a
person who is not driving has not impliedly consented to such a
test, then an inquiry into whether the test was authorized under
the implied consent statutes could include in its scope whether the
person was actually driving.
We accept for purposes of this argument that, under the
implied consent statutes, a person may be deemed to have consented
to a test only by actually driving. (EN3) However, the State's
argument fails in its interpretation of subsection .166(g) itself.
The focus of subsection .166(g)(1)-(3) is clearly on the result of
the test or the fact of refusal to take the test. Reading
subsection .166(g)(1)-(3) to encompass an inquiry into the
underlying facts that justify administration of the test would
render the first part of subsection .166(g), regarding the issue of
whether the law enforcement officer had reasonable grounds to
believe that the person was operating a motor vehicle, almost
meaningless. The statute offers very precise limiting language for
the issues that are to be considered. There is no reason to
believe that the reference to the implied consent statutes is
anything more than a descriptive tool used to identify the
"chemical test"named in each instance. (EN4)
Thus, we conclude that AS 28.15.166(g) cannot be
Alaska Statute 28.15.166(g) Is Unconstitutional as
A statute may be unconstitutional either on its face or
as applied. See Gilmore v. Alaska Workers' Compensation Bd., 882
P.2d 922, 929 n.17 (Alaska 1994). A statute is facially
unconstitutional if "no set of circumstances exists under which the
Act would be valid." United States v. Salerno, 481 U.S. 739, 745
(1987). In most cases the issues set forth in subsection .166(g)
are the only issues that need to be determined in order to review
the revocation decision. Since AS 28.15.166(g) can be applied
constitutionally in many circumstances, it is not facially
unconstitutional. To use the terms of the statutory saving clause,
AS 01.10.030, (EN5) the application of the limiting language in the
act is only invalid under circumstances in which due process
requires that other contested issues be established; in the absence
of such circumstances all of the language of the act may be given
The decision of the superior court is REVERSED and
REMANDED with instructions to remand to the Department for a new
hearing which will include an inquiry into whether Javed was
1. Sitting by assignment made pursuant to article IV, section 16
of the Alaska Constitution.
2. The State, as noted, essentially concedes as much. The bulk
of the State's argument addresses the question of whether due
process requires an inquiry into whether the arrestee was actually
driving in cases where the arrestee refuses to take a breath test.
The State suggests that the answer is no, and that the implied
consent statutes are triggered not by the act of driving a vehicle,
but by mere possession of a license. We note that the Alaska Court
of Appeals has rejected this argument in Patterson v. Municipality
of Anchorage, 815 P.2d 390, 393-94 (Alaska App. 1991). That
question is not before us now since Javed took and failed a breath
test, and we offer no resolution of it here.
3. The State offers this argument in the alternative to its
primary argument, which is that a driver's license may be revoked
for failure to submit to the breath test even where the arrestee
was not in fact driving. See supra note 2. Again, we offer no
opinion on this issue.
4. We recognize that the Oregon Supreme Court reached an opposite
conclusion in Hilton v. Motor Vehicles Div., 775 P.2d 1378 (Or.
1989). According to that court's interpretation, former ORS
482.541 limited the scope of the hearing to whether the officer had
reasonable grounds to believe the licensee was DWI, and whether the
licensee either refused or failed the test "under ORS 487.805,"the
implied consent statute. The court held that an inquiry into
whether a person failed a test "under"the implied consent statute
included a threshold inquiry into whether the person had actually
consented to a test by driving. Id. at 1380-81. Thus, the court
was able to avoid the due process question. Id. at 1380.
While we believe that the Oregon court may have given
unjustifiable emphasis to a descriptive term in looking at the
phrase "the test under ORS 487.805,"that case is also
distinguishable by the relative ambiguity of the Oregon statute.
That statute limited the scope of the hearing to whether the
suspension was "valid as described in this subsection,"775 P.2d at
1380; that subsection allowed revocation where the person "refused
the test under ORS 487.805." Thus the statute's limitation was
significantly less explicit than Alaska's.
5. Alaska Statute 01.10.030 provides:
Any law heretofore or hereafter enacted
by the Alaska legislature which lacks a
severability clause shall be construed as
though it contained the clause in the
following language, "If any provision of this
Act, or the application thereof to any person
or circumstance is held invalid, the remainder
of this Act and the application to other
persons or circumstances shall not be affected
6. Javed's original briefing to this court advanced issues of
hearsay and confrontation of witnesses. In view of the need for a
new hearing, we find it unnecessary to address those issues as they
will not necessarily be duplicated at the new hearing.