You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Pasco v. State (04/12/2002) sp-5557
Pasco v. State (04/12/2002) sp-5557
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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JEFFREY PASCO, )
) Supreme Court No. S-9920
Appellant, )
) Superior Court No. 3AN-99-3451
CI
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF ADMINISTRATION, DIVISION ) [No. 5557 - April 12, 2002]
OF MOTOR VEHICLES, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joel H. Bolger, Judge pro tem.
Appearances: Dennis P. James, Anchorage, for
Appellant. Marilyn J. Kamm, Assistant
Attorney General, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Jeffery Pasco attempted to operate a Plymouth station
wagon while he was significantly intoxicated. He claimed at his
administrative license revocation proceeding that he was trying
to move the vehicle because it was on fire and the fire
threatened his nearby home. The hearing officer rejected this
"necessity" defense. We affirm, because substantial evidence
supports the hearing officer's finding that Pasco was not
attempting to drive the car in response to an emergency.
II. FACTS AND PROCEEDINGS
Jamie and Bruce Oskolkoff woke up very early on the
morning of April 24, 1999 to a strange sound. They investigated
and discovered that one of their next-door-neighbor's vehicles
was on fire and that the engine was roaring. Jamie dialed 911 at
about 3:15 a.m. and reported the incident to the operator while
Bruce rescued their neighbor, Jeff Pasco, from the burning
vehicle. Paramedics transported Pasco and Bruce to the local
emergency room to treat them for illness related to smoke
inhalation. The vehicle, a 1993 Plymouth station wagon, was
completely destroyed by the fire.
Trooper Ted VanAntwerp contacted Pasco at the hospital
and "observed Pasco to have red, watery eyes, and an odor of
alcohol on his person." Pasco told Trooper VanAntwerp that he had
consumed approximately seven drinks between 7:00 p.m. and 2:00
a.m. at the American Legion in Ninilchik, and had driven home
shortly thereafter. After the treating physician determined
Pasco was fit to leave, Pasco submitted to and failed a series of
field sobriety tests in the hospital parking lot. Trooper
VanAntwerp escorted Pasco to the Soldotna Alaska State Trooper
station and administered an Intoximeter test. The test indicated
a breath alcohol concentration of 0.177 percent at 6:45 a.m.
VanAntwerp issued Pasco a Notice and Order of Revocation for
driving while intoxicated, and Pasco requested a hearing to
contest the revocation. Parallel criminal proceedings were
dismissed by the state under Alaska Criminal Rule 43(a) on August
28, 1999.
The hearing officer affirmed the trooper's action in a
telephonic hearing in July 1999 and revoked Pasco's privilege to
drive for one year. Pasco appealed to the superior court, which
affirmed the decision of the Department of Public Safety in a
Memorandum Decision in September 2000.
Pasco did not dispute the presence of any of the
elements of the offense of driving while intoxicated in his
hearing or in his appeal to the superior court. Rather, he
argued that the defense of necessity should apply because he only
attempted to drive while intoxicated in order to protect his home
and dog against the risk of fire posed by the burning vehicle.
His appeal to this court renews this defense and also raises due
process challenges.
III. DISCUSSION
A. Standard of Review
Alaska Statute 28.15.166(m) sets out the standards
applicable to the superior court's review of a driver's license
revocation by the Department of Public Safety:
The judicial review shall be on the record,
without taking additional testimony. The
court may reverse the [hearing officer]'s
determination if the court finds that the
[hearing officer] misinterpreted the law,
acted in an arbitrary and capricious manner,
or made a determination unsupported by the
evidence in the record.
Because we independently review the hearing officer's decision,
we apply the same standard of review.1 Accordingly, we apply the
"substitution of judgment" test to legal questions not involving
agency expertise,2 and review factual findings to ensure they are
supported by "substantial evidence."3 We consider constitutional
questions de novo.4
B. Substantial Evidence Supports the Hearing Officer's
Rejection of Pasco's Necessity Defense.
Pasco argues that his attempt to drive while impaired
was reasonably necessary to prevent his house from catching on
fire. Pasco is required to prove three elements to prevail on
his necessity defense:5
(1) The act charged must have been done to
prevent a significant evil;
(2) there must have been no adequate
alternative;
(3) the harm caused must not have been
disproportionate to the harm avoided.[6]
The first two elements are satisfied by a defendant's reasonable
belief at the time of acting; as to the last element, the court
makes an objective determination whether the defendant's value
judgment was correct.7 The hearing officer found that Pasco did
not satisfy the first element of the defense because she did not
believe that Pasco was attempting to drive his vehicle in
response to an emergency. She further held that, even assuming
Pasco's story was true, he did not satisfy the second and third
elements of the test because he had adequate lawful alternatives
to driving while impaired, and the harm caused was greater than
the harm avoided.
To satisfy the first element of the necessity defense,
Pasco must prove that he only attempted to drive the vehicle away
from his house to prevent a significant risk posed to his house
and dog by the burning vehicle. If substantial evidence supports
the hearing officer's finding that Pasco was not behind the wheel
for this reason, his defense fails. We affirm the hearing
officer's rejection of the defense because substantial evidence
undermines Pasco's version of the circumstances surrounding his
attempt to drive the car. Accordingly, we need not address the
second and third elements of the defense.
Pasco testified at the hearing that as he was preparing
for bed in the early morning hours, he looked outside and noticed
smoke coming from the vehicle. He thought the smoke was caused
by an electrical fire, and decided to open the hood in order to
disconnect the battery. Unable to open the hood from outside the
vehicle, Pasco entered the passenger compartment in search of the
hood release mechanism. Once inside the vehicle, Pasco saw
flames coming from the hood and became concerned about the safety
of his dog and home. Pasco provided no evidence that the vehicle
was sufficiently close to his house to constitute a significant
threat.
In an affidavit supplied to the superior court, Pasco
admitted that his memory of the next sequence of events is
"sketchy." He relied in part on information supplied by the
neighbor who rescued him, Bruce Oskolkoff. Pasco testified that
the vehicle suddenly roared to life as he was attempting to find
the hood release.8 When the engine began to race, Pasco tried to
"drop the throttle" to shift the vehicle into gear and move it
away from his house. The interior of the vehicle filled with
smoke. Pasco then saw flames coming from underneath the firewall
into the passenger compartment and decided that he "was in way
over [his] head and [he'd] better get out." "The next thing I
remembered was Bruce having his hand under my arm, yelling to me
to get out."
Pasco did not tell any part of this story to Trooper
VanAntwerp. Pasco told VanAntwerp that he had consumed
approximately seven drinks between 7:00 p.m. and 2:00 a.m. at the
American Legion bar in Ninilchik, and had driven home shortly
thereafter. At the hearing, however, Pasco recanted most of his
earlier statements to Trooper VanAntwerp. He testified that he
actually left the American Legion around 12:35 a.m. after having
at most four drinks there.9 He explained that his substantial
inebriation some six hours later was due to drinking
approximately half a bottle of whiskey after arriving home while
watching television, reading his mail, and generally relaxing.
When asked about the omissions and discrepancies between his
testimony and his statement to Trooper VanAntwerp, Pasco
explained that he had been confused due to a combination of sleep
deprivation and smoke inhalation, and also that he had been
afraid to admit to the trooper that he had been drinking.
Pasco's position, therefore, is that he was not impaired while
driving home from the bar, and that he only attempted to drive
while impaired in order to save his house and dog.
The hearing officer did not find Pasco's testimony
credible. She was "struck by how [Pasco's] testimony is marked
with inconsistency and reconstruction due to . . . lack of recall
to the actual event." She did not believe Pasco's explanation
for failing to tell his story to the trooper. After noting that
"[t]he trooper's information was that [Pasco] had fallen asleep
behind the wheel,"10 she concluded as follows:
I don't find your testimony credible about
the circumstances about the vehicle
starting[,] and I really need to stress to
you that it was your testimony and the
credibility of your testimony and the
difference between what you told the
officer[] and what you testified to and your
inability to recall and that [you were] just
simply reconstructing . . . was very
important to me.
The hearing officer's disbelief is supported by
substantial evidence. Pasco's account from the time he entered
the vehicle until Bruce rescued him is largely reconstructed from
conversations with Bruce. Further, his testimony contradicts his
statements to Trooper VanAntwerp on the morning of the fire and
VanAntwerp's sworn statement to the hearing officer. Pasco
sought to characterize these contradictions as the innocent
effects of inebriation, exhaustion, smoke-inhalation, and fear of
the legal consequences that might follow if he admitted to
attempting to operate the vehicle while intoxicated. But Pasco's
hearing testimony is inconsistent in precisely those respects
necessary to establish a necessity defense. Aside from Pasco's
suspect credibility, his version of the events leading up to the
fire is highly implausible. Accordingly, we will not reverse the
hearing officer's determination that Pasco's testimony was not
credible.11
Because we conclude that substantial evidence supports
the hearing officer's determination that Pasco failed to satisfy
the first element of the test, we need not determine whether
Pasco had adequate lawful alternatives besides operating the
vehicle while intoxicated, or whether the harm caused by his
illegal action was disproportionate to the harm avoided.
C. Pasco Waived His Due Process Claims by Failing to Raise
Them Below.
Pasco limited his argument before the hearing officer
and the superior court to his necessity defense. He raises
several due process claims for the first time in his opening
brief to this court, and another argument for the first time in
his reply brief. In general, we will not consider arguments
raised for the first time on appeal.12 This rule applies with
equal force to arguments never presented to an agency whose
decision is appealed.13 However, application of this rule
"presupposes an opportunity to present objections to the agency
before a decision is rendered by that agency."14 Several of
Pasco's claims did not arise until the officer issued her
decision; therefore, he did not have an opportunity to raise them
before the agency. Pasco offers no explanation, however, for why
he did not make these arguments in the superior court.
Accordingly, they are waived.
IV. CONCLUSION
Because the hearing officer's rejection of the first
element of Pasco's necessity defense is supported by substantial
evidence, we AFFIRM the superior court's affirmance of the
hearing officer's one-year revocation of Pasco's driver's
license.
_______________________________
1 Williamson v. State, Dep't of Pub. Safety, 779 P.2d
1238, 1239 (Alaska 1989); Miller v. State, Dep't of Pub. Safety,
761 P.2d 117, 118 n.2 (Alaska 1988).
2 Earth Res. Co. v. State, Dep't of Revenue, 665 P.2d
960, 965 (Alaska 1983) (citation omitted).
3 Williamson, 779 P.2d at 1239 (construing AS
28.15.166(m) to require hearing officer's factual determinations
to be supported by substantial evidence) (emphasis added).
4 State v. Anthony, 810 P.2d 155, 156-57 (Alaska 1991).
5 At least two courts have held that the defense of
necessity is unavailable in civil license revocation proceedings.
Foster v. Snyder, 90 Cal. Rptr. 2d 207, 213 (Cal. App. 1999);
State v. Pollander, 706 A.2d 1359, 1363 (Vt. 1997). These
courts, interpreting summary license revocation or suspension
procedures identical to our own in all significant respects,
found that the plain meaning of the statutes establishing these
procedures precluded the defense of necessity. Foster, 90 Cal.
Rptr. at 213; Pollander, 706 A.2d at 1363.
Because the parties did not brief the issue whether the
defense is available, and because we affirm the hearing officer's
determination that the defense fails on the merits, we assume for
purposes of this case only that the defense applies to civil or
administrative license revocation proceedings.
6 Nelson v. State, 597 P.2d 977, 979 (Alaska 1979)
(citations omitted).
7 Id. at 980 n.6 (citations omitted); see also Cleveland
v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981)
(citations omitted).
8 Pasco suggested to the hearing officer that the vehicle
"just started through being hot wired . . . the wires could have
touched each other, they were melting." Perhaps not fully
convinced by his own testimony, Pasco later affied that he may
have played a more active role in starting the vehicle.
9 Pasco corroborated this part of his story by submitting
to the hearing officer several signed, unsworn statements of
friends who had been with him at the bar. The hearing officer
discounted the evidentiary value of these statements because
Pasco's friends did not testify under oath at the hearing and
were not subject to cross-examination.
10 The hearing officer observed at the outset of the
hearing that Trooper VanAntwerp "personally appear[ed]" before
her and submitted a sworn statement. Among other facts also
found in his report, the trooper stated that he initially
contacted Pasco "after [Pasco] was taken by an ambulance to the
hospital after falling asleep in a car." Pasco did not request
Trooper VanAntwerp's presence at the hearing.
11 We recently noted that the hearing officer "is in the
best position to evaluate the witnesses' credibility and their
testimony." Whitesides v. State, Dep't of Pub. Safety, 20 P.3d
1130, 1136 (Alaska 2001) (citation omitted).
12 Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343,
351 (Alaska 1982); see also Estate of Lewis v. State, Commercial
Fisheries Entry Comm'n, 892 P.2d 175, 180 n.9 (Alaska 1995)
(holding due process complaints not raised below waived on
appeal).
13 Amerada Hess v. Alaska Pub. Utils. Comm'n, 711 P.2d
1170, 1181 n.22 (Alaska 1986).
14 Id.
