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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hartman v. State, Dept. of Administration, Division of Motor Vehicles (01/26/2007) sp-6092
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
| MORGAN C. HARTMAN, | ) |
| ) Supreme Court No. S- 11823 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-03-02754 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF | ) |
| ADMINISTRATION, DIVISION | ) No. 6092 - January 26, 2007 |
| OF MOTOR VEHICLES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Robert John, Law Office of
Robert John, Fairbanks, for Appellant.
Richard W. Postma, Jr., Assistant Attorney
General, Anchorage, and David W. M rquez,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
EASTAUGH, Justice, dissenting.
I. INTRODUCTION
This is an administrative appeal of a Department of
Motor Vehicles (DMV) decision revoking Morgan Hartmans Alaska
drivers license for driving while under the influence (DUI). At
the license revocation hearing, the arresting officer relied on a
recording of the conversation he had had with Hartman before the
arrest. Hartman, a pro se litigant who had unsuccessfully sought
a continuance to obtain further evidence, did not have a copy of
the recording, and the hearing officer made no effort to assist
Hartman in obtaining the recording. Based in part on the
officers recollection of the recording, the hearing officer
revoked Hartmans license for ninety days and the superior court
affirmed.
Hartman raises four issues on appeal. First, he claims
that the stop leading to his arrest was unconstitutional.
Second, he maintains that the hearing officer abused her
discretion by denying his request for a continuance. His third
claim closely related to the second is that he was denied due
process of law by the States failure to furnish a copy of the
recording at his hearing. Finally, he argues that DMV failed to
provide notice of the procedures that it would follow. Because
the hearing officer erred by failing to inform Hartman of the
correct procedures for obtaining the central piece of evidence in
the case, even though he was clearly attempting to obtain
potentially exculpatory evidence, we reverse the judgment of the
superior court and remand to DMV for further proceedings
consistent with this opinion.
II. FACTS AND PROCEEDINGS
A. Hartmans Arrest
On August 29, 2003, State Trooper Tim Tuckwood
responded to a report from Tim Somerlot, a Delta Junction
resident, that a group of juveniles had abandoned a car in a
ditch and left the scene in a tan Ford Taurus-type vehicle.
According to Somerlot, the group consisted of two males and two
females.
Tuckwood investigated the abandoned vehicle, finding
that it was a dented, white Honda Accord with fluid leaking from
the radiator. The windows were open, and Tuckwood noticed that
the interior had a strong odor of alcohol. Although the car had
no license plate, Tuckwood ran the vehicle identification number
and determined that it belonged to John Hartman, who lived
nearby. After unsuccessfully attempting to contact Hartman,
Tuckwood called a towing company. Before the tow truck arrived,
Tuckwood saw a small tan vehicle similar to a Ford Taurus [drive]
by, and noticed that several people were in the car. One of the
passengers was Morgan Hartman, the son of John Hartman.
Tuckwood stopped the car and questioned Hartman.
According to Tuckwood, Hartman appeared to be intoxicated, due to
a strong odor of alcohol, bloodshot eyes, slurred speech, and a
stagger[ing] step. He failed three roadside sobriety tests, and
refused to take any others. When asked about the Honda, Hartman
admitted to having driven it, and said that he had parked it in
the ditch when the radiator overheated. According to Tuckwood,
Hartman claimed to have been alone when driving, but two of the
passengers from the Ford Taurus maintained that they had been in
the Honda when Hartman was driving. One of the passengers,
Mariah Morris, said that she knew Hartman was intoxicated.1
Tuckwood arrested Hartman for driving while under the
influence. A breath sample taken from Hartman showed an alcohol
concentration of .158g/210L, an amount substantially higher than
the legal limit of .08. Hartman declined to take a second test,
and was issued a citation for underage drinking. Before being
released on bail, he was given notice that his license would be
suspended, and informed that he could challenge the suspension at
an administrative hearing.
B. Administrative Hearing
Hartman requested a hearing, and one was scheduled for
October 21, 2003. On October 15 he requested that the hearing be
postponed due to the fact that [he had] so far been unable to
gather all the evidence that [he] need[ed]. He also requested
that Tuckwood be subpoenaed, and stated that his defense would be
based on AS 04.16.051(b)2 and Snyder v. State, Department of
Public Safety, Division of Motor Vehicles.3 On October 21
Hartman participated telephonically and pro se in the hearing.
At the beginning of the hearing, the request for a continuance
was denied4 on the ground that Hartman could have requested
discovery, but did not.
The hearing officer heard testimony from Tuckwood,
Hartman, Hartmans mother, and Crystal Mercer, the driver of the
Ford Taurus. Tuckwoods initial testimony mirrored his police
report. Specifically, he claimed that Hartman tried to tell
[him] that he wasnt intoxicated because he doesnt drink.
Hartman testified that he was contesting the license
revocation because he did not become intoxicated until after he
left the Honda. He claimed that he was driving the Honda off-
road5 with two friends, and that he parked it when the
transmission malfunctioned. At that point, he asserted, he had
not yet had anything to drink. After the car broke down, Hartman
and his friends began walking to Hartmans house, but soon saw
Mercer pass by in a tan Ford Taurus. Mercer gave them a ride,
and Hartman invited all of them to have dinner with his family.
Hartman had several beers during dinner.6 The four then left in
the Ford Taurus, with Mercer driving. When they were pulled
over, Hartman testified, he told Tuckwood that he was drinking
after [he] drove, a claim that Tuckwood must have misinterpreted.
The hearing officer called Tuckwood again, and asked if
he had a tape recording of the contact and arrest. Tuckwood
responded in the affirmative, and the hearing officer noted that
she did not have a copy of it. Tuckwood proceeded to testify
about the tape, claiming that it supported his account of what
Hartman had said. Hartman did not have a copy of the tape and
was thus unable to verify Tuckwoods recollection of its content
or cross-examine Tuckwood about it.
Hartmans mother corroborated her sons claim that he had
been drinking at dinner but not earlier. She also described
Hartmans earlier unsuccessful attempt in his criminal case to
procure a tape recording of the arrest and his public defenders
response that no tape existed:
And as far as the tapes, Maam, supposedly
Officer Tuckwood said he theres a tape in
existence that said [Hartman] said he was
drinking. But then there is no tape. Theres
no such thing. We tried to get the tape.
[Hartman] tried to get a copy of it from his
public defender. The reason why he cant is
because there is none. It doesnt exist.
On October 30 the hearing officer issued a decision.
In her findings, she noted that Hartman was the driver of the
Honda, and that Hartman was highly intoxicated when Tuckwood
arrested him. She also found that the contact tape does exist
and that Tuckwoods testimony about its contents was credible.
Based on these findings, the breath alcohol test, and her
negative assessment of Hartmans credibility, the hearing officer
determined that Hartman had been driving while under the
influence. She therefore affirmed the ninety-day revocation of
his license.
Hartman appealed this decision to the superior court.
The superior court held that Tuckwood had reasonable suspicion to
make the stop and probable cause to arrest Hartman. It also
determined that DMVs failure to furnish Hartman a copy of the
recording absent any request did not violate Hartmans right to
due process. Similarly, it ruled that Tuckwoods reliance on a
recording that had not been furnished to Hartman did not violate
Hartmans rights under the confrontation clause, because Tuckwood
merely used it to confirm his memory of Hartmans statements.
Finally, the superior court held that the hearing officer did not
abuse her discretion by denying Hartmans request for a
continuance. For these reasons, the superior court affirmed the
hearing officers decision. Hartmans subsequent petition for
rehearing was denied, and this appeal followed.
III. DISCUSSION
A. Standard of Review
When reviewing license revocation hearings, we apply
the standard of review set forth in Nevers v. State, Department
of Administration:
We review license revocation hearings under
AS 28.15.166(m), which provides that the
court may reverse the departments
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. Where the superior court acts as
an intermediate court of appeals, we
independently review the hearing officers
decision. For legal questions not involving
agency expertise, we apply the substitution
of judgment standard. We also review
constitutional questions de novo, and will
adopt the rule of law that is most persuasive
in light of precedent, reason, and policy.[7]
B. Legality of the Investigatory Stop
Hartman first argues that the investigatory stop of the
tan Ford Taurus was unconstitutional because it was not justified
by reasonable suspicion.8 As a result, he claims, this evidence
should have been suppressed.
The exclusionary rule provides that evidence obtained
from an unconstitutional search or seizure is inadmissible and
must be excluded.9 Although this rule generally does not apply
to license revocation proceedings,10 we have held that an
exception applies in certain contexts, such as police misconduct
which shocks the conscience, or is of a nature that calls for the
judiciary, as a matter of judicial integrity, to disassociate
itself from benefits derivable therefrom.11 In addition, where a
Fourth Amendment violation stems from a lack of probable cause
for a DUI arrest, exclusion may well be mandated because probable
cause is an affirmative statutory element of the offense of
refusal and is an affirmative element for proof in the license
revocation proceeding.12 But we need not reach the applicability
of exceptions to the general rule in this case because the
investigative stop was not an unreasonable search or seizure.
In Alaska, a police officer may make an investigatory
stop if the officer has a reasonable suspicion that imminent
public danger exists or serious harm to persons or property has
recently occurred.13 Reasonable suspicion exists where the
totality of the circumstances indicates that there is a
substantial possibility that conduct [giving rise to a public
danger] has occurred, is occurring, or is about to occur.14 Thus,
where a police officer has reasonable suspicion that a driver is
operating a vehicle while intoxicated,15 the officer may conduct
an investigatory stop.16
While we have held that a person who is driving while
under the influence poses an imminent public danger, warranting
an investigatory stop,17 we have not considered whether a person
who has recently been behind the wheel while intoxicated but is
no longer driving continues to pose an imminent public danger.
In a series of three cases,18 the court of appeals has addressed
this specific issue. In Larson v. State, a police officer
observed a car stopped in the middle of the road, and then
watched as the driver of the car, Larson, drove on the wrong side
of the road, tried to pick up pedestrians, and almost hit a group
of pedestrians.19 The officer then witnessed Larson pick up two
pedestrians, one of whom took over driving.20 The officer stopped
the car, immediately approached Larson, now a passenger, observed
that he appeared intoxicated, and arrested him for DUI.21 The
court of appeals concluded that the district court did not
clearly err when it found that it was likely that Larson would
have resumed driving at some later point, and that [the officer]
was not unreasonable in believing that the change of drivers did
not eliminate the need to make an investigatory stop.22
In Romo v. Municipality of Anchorage, a police officer
began following the defendant after observing a known prostitute
in the cab of the truck that the defendant was driving.23 The
defendant, who was not driving erratically, pulled into a parking
lot, exited the truck, and voluntarily approached the police
officer.24 When the police officer noticed that Romo had an odor
of alcoholic beverage about his . . . person, he asked Romo to
perform a field sobriety test.25 The court of appeals concluded
the test was justified by reasonable suspicion.26 The court
explained that [t]he fact that Romo was driving just prior to his
encounter with [the officer] demonstrated Romos willingness to
drive in his current [intoxicated] condition.27 The court of
appeals went on to reason that because Romo retained possession
of his car and it remained immediately accessible for him to
drive,28 there was a sufficient risk of imminent public danger to
warrant an investigatory stop.29
In Shearer v. Municipality of Anchorage, a police
officer noticed a jeep being driven erratically on the Glenn
Highway and followed the vehicle until its owner pulled the jeep
into his driveway.30 The officer contacted the driver, Shearer,
as he was heading into his house, and, noticing that Shearer
smelled of alcohol, asked him to perform field sobriety tests.31
As in Romo, the court of appeals pointed to Shearers continuing
possession of the vehicle as a factor increasing the likelihood
that he would resume driving, but did not state that possession
was, in all cases, a necessary condition for finding an imminent
public danger:
[L]ike the defendant in Romo, Shearer still
had access to his car at the time of the
encounter with [the police officer].
Further, Shearer had just demonstrated his
willingness to drive while intoxicated.
Thus, [the officer] could reasonably believe
that there was a sufficient risk of imminent
public danger to justify an investigatory
stop.[32]
In this case, although Hartman was no longer driving
his car, the investigatory stop was still proper. Somerlot
reported that the Honda whip[ped] into his yard and crashed into
a ditch in front of his house. Somerlot then saw the juveniles
exit the Honda and get into a tan Ford Taurus[-]type vehicle.
There was no license plate on the Honda, but the vehicle
identification number indicated that it belonged to John Hartman,
whose teenage son Tuckwood knew. Tuckwood noted that the Honda
smelled strongly of alcohol. While waiting for the tow truck to
arrive, Tuckwood saw a tan Ford Taurus-like vehicle with
juveniles in it drive by the abandoned Honda. Tuckwood therefore
had a reasonable suspicion that someone had been driving the
Honda while under the influence and that the intoxicated driver
of the Honda was likely in the Ford Taurus when Tuckwood stopped
it. Although Hartman was now a passenger in the Ford Taurus,
this is not enough to show that he no longer posed an imminent
public danger. Passenger status did not automatically establish
a non-driving intention on Hartmans part.33 Nor was Hartmans non-
ownership of the Ford Taurus determinative absent evidence that
the owner of the vehicle was unwilling to give him a chance to
drive. In view of Hartmans continuing access to the Taurus,
Tuckwoods belief that Hartman posed an imminent public danger
was reasonable. Therefore, under these circumstances, the
investigatory stop was legal.
C. Denial of a Continuance and Failure To Provide the
Recording
Hartman maintains that the superior court erred by
denying him a continuance to obtain additional evidence. Because
this claim is closely related to his argument about the recording
that the State violated his right to due process by failing to
furnish the central piece of evidence in the case the two issues
will be treated together.
A driver has a constitutional right to a meaningful
hearing before the state can suspend his [or her] license.34 In
defining a meaningful hearing, we are guided by considerations of
fundamental fairness, 35 which require that the same procedural
safeguards apply in civil drivers license revocation proceedings
for driving while intoxicated as apply in criminal prosecutions
for that offense.36 One such safeguard is the requirement that
the State preserve and make available to a criminal defendant
material evidence gathered in a criminal investigation which may
prove important in the preparation of the accuseds defense.37 A
meaningful license revocation hearing, like a meaningful trial,
should therefore include 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.38
The State asserts that it is generally not required to
furnish such evidence in the absence of a request,39 and points
out that Hartman did not explicitly request a copy of the tape.
But Hartman, a pro se litigant, had requested a continuance on
the ground that he had so far been unable to gather all the
evidence that [he] need[ed], and the court heard testimony that
he had previously (but unsuccessfully) attempted to obtain a copy
of the recording. We have stated that a trial judge should
inform a pro se litigant of the proper procedure for the action
he or she is obviously attempting to accomplish.40 Here, Hartman
was obviously attempting41 to obtain potentially exculpatory
evidence, and the central piece of evidence in this case was the
recording.42 His failure to request a copy at the close of the
hearing appears to have been the product of a belief that the
tape did not exist.43 In this situation, the hearing officer
should have informed Hartman that he could request a copy of the
tape and, if the State failed to provide the requested evidence,
that she could impose an appropriate sanction.44 Her failure to
inform Hartman of the procedure by which he could procure the
tape that he had previously sought, and her issuance of a
decision that was based largely on a recording that neither she
nor the accused had heard, violated Hartmans right to due
process. We therefore remand for a new hearing.
D. Notice of DMVs Procedures
Finally, Hartman claims that the hearing officer denied
him advance notice of [DMVs] method of proceeding by: (1) failing
to inform him before the day of the hearing that his continuance
would be denied; (2) not giving him notice that she would be
considering testimony about the recording; and (3) failing to
state when she would issue a judgment. But the notice of
administrative hearing stated that, in the absence of an answer
regarding a motion for postponement, the motion may be considered
denied. The second and third elements of Hartmans notice claim
are moot. Because we hold that the hearing officers conduct
regarding the recording was unconstitutional, we need not address
the question whether Hartman received notice that testimony
regarding the recording would be considered. Similarly, because
we are remanding for a new hearing, we need not determine whether
the hearing officer provided sufficient notice of the date of her
decision.
IV. CONCLUSION
For the reasons set forth above, we REVERSE the
judgment of the superior court and REMAND to DMV for further
proceedings consistent with this opinion.
EASTAUGH, Justice, dissenting.
A. Introduction
I respectfully dissent from the conclusion that Trooper
Tuckwoods investigatory stop was lawful. When he contacted
Morgan Hartman, Trooper Tuckwood could not have had a reasonable
suspicion that Hartman posed an imminent public danger because:
(1) he knew the family car Hartman had been driving was no longer
in Hartmans possession and was no longer available to Hartman
because it was disabled and being towed; (2) he knew Hartman was
only a passenger in someone elses car; and (3) he expressed no
belief, reasonable or otherwise, that Hartman might begin to
drive that car. The result the court reaches is therefore
contrary to Coleman v. State.1 It is also contrary to the three
pertinent court of appeals decisions on which todays opinion
relies. I first discuss the lawfulness of the
investigatory stop because the courts opinion focuses on that
issue. Because I conclude that the investigatory stop was
unlawful, it is also necessary to decide whether the unlawfulness
of the stop affects the license revocation. The applicable
statutes, AS 28.35.031(a) and AS 28.15.166(g), do not authorize
the state to suspend a motorists license on the basis of a search
that is itself the product of an unlawful arrest. The arrest
here was unlawful because it directly resulted from an unlawful
stop. The license revocation should therefore be reversed.
B. The Investigatory Stop Was Unlawful.
In Coleman, we articulated the standard for
investigatory stops in Alaska: a police officer may make an
investigatory stop only if he has a reasonable suspicion that
imminent public danger exists or serious harm to persons or
property has recently occurred.2 We recently reaffirmed our
adherence to the Coleman standard in Saltz v. State, Department
of Administration, Division of Motor Vehicles.3 We also
explained that a reasonable suspicion must be based on specific
and articulable facts and a totality of the circumstances.4
We have held that a sufficient imminent public danger
exists for which an officer may make an investigatory stop if the
officer has a reasonable suspicion that a person is driving while
intoxicated.5 But we have never considered whether a person who
has ceased driving while intoxicated continues to pose an
imminent public danger under Coleman. That case requires an
officer to have a reasonable suspicion that imminent public
danger exists, not that imminent public danger existed at some
point in the past.6
In a series of cases Larson v. State,7 Romo v.
Municipality of Anchorage,8 and Shearer v. Municipality of
Anchorage9 the court of appeals addressed whether, and under
what circumstances, a person who was formerly driving while
intoxicated but is no longer doing so continues to pose an
imminent public danger under Coleman.
In Larson, a police officer observed a car stopped in
the middle of the road, and then watched as the driver of the car
(Larson) drove on the wrong side of the road, tried to pick up
pedestrians, and almost hit a second group of pedestrians.10 The
officer then witnessed Larson pick up two pedestrians, one of
whom took over driving the vehicle Larson had been operating.11
The officer stopped the car, immediately contacted Larson (who
was then a passenger), observed that he appeared intoxicated, and
arrested him for DWI.12 Larson argued that the stop was unlawful
and that therefore evidence of his intoxication should be
suppressed.13 The court of appeals rejected his argument. The
court first reasoned that the officers suspicion that Larson had
been driving while intoxicated was reasonable given Larsons
erratic driving.14 The court then addressed whether the
requisite element of imminent danger terminated when Larson
allowed an apparent stranger to drive the car in his place.15
The court concluded that the district court had not clearly erred
when it found that it was likely that Larson would have resumed
driving at some later point, and that [the officer] was not
unreasonable in believing that the change of drivers did not
eliminate the need to make an investigatory stop.16
In Romo, a police officer followed a truck after he
recognized a known prostitute in the trucks front passenger
seat.17 The truck pulled into a parking lot and the driver
(Romo) voluntarily exited the truck and approached the officer.18
The officer noticed that Romo smelled of alcohol and Romo
admitted to the officer that he had been drinking.19 The officer
then asked Romo to perform field sobriety tests; Romo failed the
tests.20 The court of appeals concluded that the investigatory
stop commenced when the officer asked Romo to perform the field
sobriety tests and that the officer had sufficient reasonable
suspicion at that point to warrant that request.21 As the court
explained:
The fact that Romo was driving just prior to
his encounter with [the officer] demonstrated
Romos willingness to drive in his current
[intoxicated] condition. At the time of the
encounter, Romo retained possession of his
car and it remained immediately accessible
for him to drive. Under these circumstances
there was a sufficient risk of imminent
public danger to warrant an investigatory
stop.[22]
In Shearer, an off-duty police officer observed a Jeep
speeding on the Glenn Highway and swerving between lanes without
signaling.23 The officer telephoned Anchorage Police Department
dispatch for a check on the Jeeps license plates, determined
where the owner lived, and followed the Jeep to the owners
residence.24 The driver (Shearer) opened his garage door, parked
the Jeep in his driveway, and exited the Jeep.25 As Shearer
headed into his house through the garage, the officer contacted
him.26 The officer noticed that Shearer smelled of alcohol and
arrested him for DWI after he had difficulty performing field
sobriety tests.27 On appeal, Shearer conceded that he arguably
posed an imminent public danger while he was driving home, but
claimed that because he parked his Jeep in his driveway, exited
the vehicle and was headed towards his home when [the officer]
contacted him, [the officer] had no basis to reasonably suspect
that Shearer continued to pose an imminent danger to the motoring
public.28 The court of appeals rejected Shearers argument
because, as the court explained, at the time of his encounter
with the officer, Shearer retained possession of the vehicle and
it remained immediately accessible for him to drive.29
Thus, under Larson, Romo, and Shearer, an officer may
conduct an investigatory stop of a person who is no longer
driving but is suspected of driving while intoxicated when (a)
the driver just demonstrated his willingness to drive while
intoxicated, and (b) the driver retains possession of his vehicle
and it remains immediately accessible for him to drive.30 The
second prong of that analysis provides assurance that the officer
has a reasonable suspicion that imminent public danger continues
to exist even though the intoxicated driver was no longer
driving.31
The courts opinion correctly reasons that Trooper
Tuckwood had a reasonable suspicion for thinking that Hartman had
been driving while intoxicated. But there is no justification
for concluding that Hartman posed an imminent public danger at
the moment he was contacted by Trooper Tuckwood. Trooper
Tuckwood could not then have reasonably suspected that Hartman
would again operate a vehicle that day. The Honda owned by
Hartmans father was disabled and Trooper Tuckwood was having it
towed. And there was no evidence Hartman might operate the tan
Taurus in which he was now a passenger. Trooper Tuckwood never
testified that he thought Hartman might drive the Taurus. As
Hartman argues, the Taurus did not belong to him and he had
manifested a non-driving intention as a passenger in the Taurus.
Moreover, there was no indication the Taurus driver was impaired
or might ask or permit Hartman to drive. Because Hartman was not
in possession of a vehicle and no vehicle was immediately
accessible for him to drive, Trooper Tuckwood could not have
reasonably suspected that imminent public danger existed when he
stopped the Taurus, contacted Hartman, and saw that Hartman was
merely a passenger in someone elses car.32
The courts opinion discusses Larson, Romo, and
Shearer.33 But in my view, the opinion recognizes but ultimately
misapplies the factual justification that permitted the court of
appeals to uphold the stops in those cases: the availability of
a vehicle the defendant might drive and some likelihood he might
actually drive it.34 To uphold the stop here given the complete
absence of any evidence and any administrative finding that there
was any likelihood Hartman might drive the Taurus misapplies the
court of appealss decisions. And, given the circumstances here,
it would mean police could find imminent public danger justifying
an investigatory stop whenever a vehicle driver gives a ride to
an intoxicated passenger, on a theory, unsupported by any
evidence supporting a reasonable belief, the driver might
relinquish the wheel to the visibly intoxicated passenger. No
doubt such a relinquishment of control can occur. But absent
evidence justifying some reason to think it is likely to occur, a
DUI investigatory stop would not be sustainable in that case, nor
is it in this case.
It is not just that those three court of appeals
decisions uphold stops for reasons absent here. Our own case,
Coleman, requires us to hold that the absence of any evidence
that the trooper actually thought Hartman might drive the Taurus,
and the absence of any evidence that would have made such a
notion reasonable, is fatal to this stop. Coleman requires the
officer to suspect that imminent public danger exists, not simply
that it existed in the past.35
The state also argues that Trooper Tuckwoods
investigatory stop was lawful because Trooper Tuckwood had a
reasonable suspicion that serious harm to persons or property
ha[d] recently occurred.36 The state suggests that Trooper
Tuckwood may have stopped the Taurus to investigate whether a
theft had been committed. But the Honda was never reported
stolen, and Trooper Tuckwood never expressed any concern in his
police report or his testimony that he thought the Taurus was
stolen. And the only damage to the car that Trooper Tuckwood
reported was that the Honda was dented and leaking water or
antifreeze.
The state cites Gutierres v. State37 and argues that an
officer may investigate a crime before he or she has specific
knowledge that a crime has been committed. But an officer must
still have specific and articulable facts supporting a reasonable
suspicion that serious harm to property has recently occurred.38
In Gutierres, an officer was patrolling a residential area in the
middle of the night when he saw a man jump into the passenger
side of a car in a back alley as the officer approached; the
driver then swiftly backed the vehicle down the alley.39 The
court of appeals held that these were sufficiently suspicious
circumstances to warrant an investigatory stop on the theory that
there had been a potential burglary.40 But here, Trooper
Tuckwood did not testify that he had witnessed any suspicious
circumstances suggesting a car theft. Instead, he reported and
testified that he knew the Honda belonged to John Hartman; his
report and testimony implied that he thought Morgan Hartman
(Johns son) had been driving the car because Morgans friend lived
nearby.
Because Trooper Tuckwood did not have a reasonable
suspicion that imminent public danger existed or that serious
harm to property had recently occurred, the investigatory stop
was unlawful under Coleman.41
C. Hartmans Drivers License Revocation Should Be Reversed.
Hartmans drivers license revocation should be reversed
because the statutory provisions underlying administration of a
breath test, the revocation of a drivers license, and the drivers
license revocation appeal process are contingent upon a lawful
arrest.42 Alaska Statute 28.15.165(a) requires an officer to
notify a person who has failed or refused to take a chemical or
breath test administered under AS 28.35.031(a) that the
department intends to revoke his drivers license and that he has
a right to administrative review. Alaska Statute 28.35.031(a)
part of the implied consent statute provides:
A person who operates or drives a motor
vehicle in this state . . . shall be
considered to have given consent to a
chemical test or tests of the persons breath
for the purpose of determining the alcoholic
content of the persons blood or breath if
lawfully arrested for an offense arising out
of acts alleged to have been committed while
the person was operating or driving a motor
vehicle . . . while under the influence of an
alcoholic beverage, inhalant, or controlled
substance. . . . The test or tests shall be
administered at the direction of a law
enforcement officer who has probable cause to
believe that the person was operating or
driving a motor vehicle . . . in this state
while under the influence of an alcoholic
beverage. . . .
(Emphasis added.) And AS 28.15.166(g) provides that a DMV
hearing officer may consider two issues when reviewing the DMV
drivers license revocation decision: first, whether the law
enforcement officer had probable cause to believe . . . that the
person was operating a motor vehicle . . . while under the
influence of an alcoholic beverage, inhalant, or controlled
substance, and second, whether the person refused to submit to
the chemical test or the chemical test produced a result
indicating the person had a blood alcohol content at or above .08
percent. (Emphasis added.) Under AS 28.15.166(j), if one of the
subsection .166(g) issues is determined in the negative by the
hearing officer, the departments action shall be rescinded.
Alaska Statute 28.35.031(a) and AS 28.16.166(g) require
a drivers license revocation to be based upon a lawful arrest.
Under AS 28.35.031(a), the state may not use breath test results
that are obtained following an unlawful arrest. And under AS
28.15.166(j), the drivers license revocation must be rescinded if
the officer did not have probable cause to believe that the
person was operating a motor vehicle while intoxicated.
For reasons I explained in Part B, the investigatory
stop was unlawful. The ensuing arrest was also unlawful because
Trooper Tuckwood established probable cause to arrest Hartman
with information gathered during the unlawful stop. [A]n arrest
is invalid if it follows as a consequence of and depends upon
[an] unlawful stop. . . . [A]n unlawful stop may invalidate an
ensuing arrest . . . through the exclusion of evidence garnered
from the stop.43 Without the investigatory stop, Trooper
Tuckwood would not have had probable cause to arrest Hartman for
driving while intoxicated. It was only after the stop that
Trooper Tuckwood confirmed the identity of the driver of the
Honda or had any evidence (aside from the smell of alcohol in the
Honda) of Hartmans intoxication. Because a drivers license
revocation is premised on a lawful arrest, and because Trooper
Tuckwoods arrest of Hartman was unlawful, we should reverse his
drivers license revocation.44
D. Conclusion
Because the statutory provisions governing drivers
license revocation proceedings do not authorize the state to
revoke a motorists drivers license on the basis of a search that
itself is the product of an unlawful arrest, and because the
arrest here was unlawful, we should reverse Hartmans drivers
license revocation.
_______________________________
1 It is unclear whether Morris meant that Hartman was
intoxicated at the time Tuckwood asked or when he was driving the
Honda.
2 AS 04.16.051(a) forbids the delivery of alcoholic
beverages to those under twenty-one, but AS 04.16.051(b)(1) makes
an exception for alcohol given by a parent to the parents child.
3 43 P.3d 157 (Alaska 2002). In Snyder, the driver
claimed that he had not become intoxicated until after he crashed
his vehicle. Id. at 158.
4 Although the hearing officer did not inform Hartman of
her decision until the day of the hearing, the notice of
administrative hearing states that, in the absence of an answer
regarding a motion for postponement, the motion may be considered
denied.
5 Hartman described it as a field car, as opposed to a
highway car, and denied that he had driven it on the road.
6 Mercer testified that Hartman appeared to be sober
before dinner, but that he had consumed beer during dinner.
7 123 P.3d 958, 961 (Alaska 2005) (citations and
quotation marks omitted).
8 The State points out that Hartman did not raise this
issue before the hearing officer. Cf. Snyder, 43 P.3d at 161 n.9
(holding that a driver waived his Miranda claim by failing to
argue it at the initial . . . hearing). But, in its brief and
arguments before the superior court, the State did not raise the
waiver issue. The State, therefore, has waived the right to
argue that Hartman waived the search issue.
9 Nevers, 123 P.3d at 962. This rule is applicable in
both state and federal courts. See Ellison v. State, 383 P.2d
716, 718 (Alaska 1963) (citing Mapp v. Ohio, 367 U.S. 643, 654-55
(1961) for the proposition that the exclusionary rule operates as
a constitutional mandate upon the state courts).
10 Nevers, 123 P.3d at 964.
11 Id. (quoting State v. Sears, 553 P.2d 907, 914 (Alaska
1976)).
12 Nevers, 123 P.3d at 963 n.21.
13 Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
14 Saltz v. State, Dept of Admin., Div. of Motor Vehicles,
126 P.3d 133, 136 (Alaska 2005) (citing State v. Morgan, 667 P.2d
734, 735-36 (Alaska App. 1983)).
15 Saltz, 126 P.3d at 136.
16 Id.; see also State v. G.B., 769 P.2d 452, 456 (Alaska
App. 1989) (noting that police officers may conduct investigatory
stops in cases where a prompt investigation is required . . . as
a matter of practical necessity) (citation omitted).
17 Ebona v. State, 577 P.2d 698, 701 (Alaska 1978).
18 Shearer v. Municipality of Anchorage, 4 P.3d 336, 338-
40 (Alaska App. 2000); Romo v. Municipality of Anchorage, 697
P.2d 1065, 1069-70 (Alaska App. 1985); Larson v. State, 669 P.2d
1334, 1337 (Alaska App. 1983).
19 669 P.2d at 1335.
20 Id.
21 Id. at 1335-36.
22 Id. at 1337.
23 697 P.2d at 1067.
24 Id.
25 Id.
26 Id. at 1068-69.
27 Id. at 1069.
28 Id.
29 Id. at 1069-70.
30 4 P.3d at 337-38.
31 Id. at 338.
32 Id. at 340 (citation omitted).
33 See Larson, 669 P.2d at 1335-37 (affirming the validity
of an investigatory stop after a third party had taken the
defendants place at the wheel and the defendant had become a
passenger).
34 Champion v. Dept of Pub. Safety, 721 P.2d 131, 133
(Alaska 1986); see also Whitesides v. State, Dept of Pub. Safety,
Div. of Motor Vehicles, 20 P.3d 1130, 1135-36 (Alaska 2001)
(noting that a drivers license is an important property interest,
and that our cases underscore the importance of the right to
drive).
35 Thorne v. Dept of Pub. Safety, State of Alaska, 774
P.2d 1326, 1329 (Alaska 1989) (quoting Whisenhunt v. Dept of Pub.
Safety, 746 P.2d 1298, 1300 (Alaska 1987)).
36 Barcott v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 741 P.2d 226, 228 (Alaska 1987) (citing Champion, 721
P.2d at 133); see also Whitesides, 20 P.3d at 1135-36, 1138-39
(noting that DMV must permit the accused to test the reliability
of evidence and may not consider evidence obtained in violation
of the right to counsel, and holding that an in-person hearing
must be provided on request where the credibility of a party is
at issue).
37 Thorne, 774 P.2d at 1330 (holding that the States
failure to preserve a videotape of field sobriety tests taken an
hour after a DWI arrest violated the drivers right to due process
in a license revocation hearing); see also Snyder v. State
(Snyder I), 930 P.2d 1274, 1282 (Alaska 1996) (noting, in the
context of a criminal prosecution for driving while intoxicated,
that [i]t is a fundamental tenet of due process of law that a
person accused of a crime has a right to attempt to obtain
exculpatory evidence. And it is well established that law
enforcement has a duty to preserve and disclose material
evidence, the dereliction of which can deprive the accused of due
process.). This is particularly true where the evidence is of a
type that the State can easily preserve. See Thorne, 774 P.2d at
1330 (explaining, in the context of a videotape, that
considerations of fundamental fairness dictate that where the
burden of preservation is so slight, evidence being potentially
relevant to an issue of central importance at the revocation
proceeding should be preserved).
38 Graham v. State, 633 P.2d 211, 216 n.12 (Alaska 1981).
39 But see Snyder I, 930 P.2d at 1278 (holding that the
State was required to help a suspect obtain evidence in the
unique evidentiary circumstance of a request for an independent
blood test in connection with a DWI arrest).
40 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987); see also
Genaro v. Municipality of Anchorage, 76 P.3d 844, 846-47 (Alaska
2003) (holding that the superior court erred by failing to inform
a pro se litigant who was obviously attempting to use a Rule
36(b) motion to preclude summary judgment of the procedure for
doing so); Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska
1998) (holding that the superior court erred by failing to inform
a pro se litigant of the specific defects in his notice of appeal
and give him an opportunity to remedy those defects).
41 Breck, 745 P.2d at 75. This is distinguishable from a
situation where the court has reason to believe that discovery
issues have been resolved. Cf. Rollins v. State, Dept of Rev.,
Alcoholic Beverage Control Bd., 991 P.2d 202, 212 (Alaska 1999)
(holding that the due process rights of an applicant for a
beverage dispensary license were not violated by the hearing
officers failure to inquire into alleged discovery violations by
the State because correspondence between [the applicant] and the
Board, copied to the hearing officer, reasonably indicated that
the discovery issues were resolved).
42 In many DUI cases, the most important evidence is the
alcohol test result. See, e.g., Barcott, 741 P.2d at 228-30
(discussing whether due process requires consideration of the
inherent inaccuracy of a breath alcohol test when the result is
within the margin of error). But Hartman did not claim during
the hearing that he was not intoxicated. Rather, his defense was
that he did not start drinking until after he stopped driving.
The hearing officers negative credibility assessment was largely
based on Tuckwoods claims that Hartman had denied having consumed
any alcohol at the time of arrest. By proving or disproving
this, the tape could have had a decisive effect on the result.
43 According to the testimony of Hartmans mother, he
instructed his public defender to obtain a copy in the criminal
case, but no copy was provided. Even after Tuckwood told the
hearing officer about the contents of the tape, Hartmans mother
testified that there is no tape, and that the reason why Hartman
was unable to obtain it from his public defender was because it
did not exist.
44 Sanctions would be based on [t]he states good or bad
faith in failing to preserve the []tape, as well as the degree of
culpability on the part of the state, the importance of the
evidence lost, the prejudice suffered by the accused, and the
evidence of guilt adduced at the trial or hearing. Thorne, 774
P.2d at 1331. In Thorne, we determined that the appropriate
sanction was a presumption that the contents of the videotape at
issue would have favored the accused. Id.
1 Coleman v. State, 553 P.2d 40 (Alaska 1976).
2 Id. at 46.
3 Saltz v. State, Dept of Admin., Div. of Motor Vehicles,
126 P.3d 133, 136 (Alaska 2005).
4 Id.
5 Id.; Ebona v. State, 577 P.2d 698, 701 (Alaska 1978).
6 See Coleman, 553 P.2d at 46.
7 Larson v. State, 669 P.2d 1334 (Alaska App. 1983).
8 Romo v. Municipality of Anchorage, 697 P.2d 1065
(Alaska App. 1985).
9 Shearer v. Municipality of Anchorage, 4 P.3d 336
(Alaska App. 2000).
10 Larson, 669 P.2d at 1335.
11 Id.
12 Id. at 133536.
13 Id. at 1336.
14 Id. at 1337.
15 Id.
16 Id.
17 Romo, 697 P.2d at 1067.
18 Id.
19 Id.
20 Id.
21 Id. at 106869.
22 Id. at 106970.
23 Shearer, 4 P.3d at 337.
24 Id. at 33738.
25 Id. at 338.
26 Id.
27 Id.
28 Id.
29 Id. at 340 (internal quotation marks omitted).
30 Id.; Romo, 697 P.2d at 106970; Larson, 669 P.2d at
1337.
31 See Coleman, 553 P.2d at 46.
32 See Shearer, 4 P.3d at 340; Romo, 697 P.2d at 106970;
Larson, 669 P.2d at 1337.
33 Slip Op. at 912.
34 Shearer, 4 P.3d at 340; Romo, 697 P.2d at 106970;
Larson, 669 P.2d at 1337.
35 Coleman, 553 P.2d at 46.
36 See Coleman, 553 P.2d at 46.
37 Gutierres v. State, 793 P.2d 1078 (Alaska App. 1990).
38 See Saltz v. State, Dept of Admin., Div. of Motor
Vehicles, 126 P.3d 133, 136 (Alaska 2005).
39 Gutierres, 793 P.2d at 1079.
40 Id. at 1080.
41 See Coleman, 553 P.2d at 46.
42 Thorne v. State, Dept of Pub. Safety, 774 P.2d 1326,
1331 (Alaska 1989) (stating that whether arresting officer had
reasonable grounds to believe defendant was driving while
intoxicated is issue of central importance in drivers license
revocation proceeding); Miller v. State, Dept of Pub. Safety,
Div. of Motor Vehicles, 761 P.2d 117, 11819 (Alaska 1988)
(considering lawfulness of investigatory stop under Coleman);
State v. Grier, 791 P.2d 627, 63031 (Alaska App. 1990) (noting
that because former AS 28.35.031(a) required probable cause to
arrest, if arresting officer did not have probable cause to
arrest defendant for driving while intoxicated, trial court
properly suppressed defendants blood and breath test results).
43 Pooler v. Motor Vehicles Div., 755 P.2d 701, 703 (Or.
1988).
44 Because the statutes prohibit the state from revoking a
motorists drivers license on the basis of a search that is
itself the product of an unlawful arrest, it is not necessary to
consider whether the exclusionary rule should also operate in
this context to suppress the breath test result obtained after
the unlawful investigatory stop. See Nevers v. State, Dept of
Admin., Div. of Motor Vehicles, 123 P.3d 958, 963 n.21 (Alaska
2005) (holding that although exclusionary rule does not apply to
search and seizure violations in administrative drivers license
revocation proceedings, there may be potential exceptions, as
when a Fourth Amendment violation stems from a lack of probable
cause for a DWI arrest).
This courts opinion remands for a new hearing because
it concludes that the procedure followed by the hearing officer
at the hearing violated Hartmans due process. Slip Op. at 16.
The result I believe to be required here also makes it
unnecessary to decide that procedural issue.
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