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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alvarez v. State, Dept. of Administration, Division of Motor Vehicles (8/13/2010) sp-6500
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
| SONJA ALVAREZ, | ) |
| ) Supreme Court No. S- 12768 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 1KE-04-00115 CI |
| ) | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF | ) |
| ADMINISTRATION, DIVISION | ) |
| OF MOTOR VEHICLES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6500 - August 13, 2010 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Michael A. Thompson, Judge.
Appearances: Sonja Alvarez, pro se,
Ketchikan, Appellant. Krista S. Stearns,
Assistant Attorney General, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
A driver appeals the 90-day suspension of her drivers
license two and a half years after her arrest for drunk driving.
The delay was almost entirely due to the fact that the officer
who arrested her was deployed to Iraq with the military shortly
after her arrest, and the suspension hearing was continued until
the state learned of his return. The driver challenges the
suspension on constitutional, procedural, and evidentiary
grounds. Because the delay between the suspension and the
hearing was neither a denial of due process nor arbitrary and
capricious, because none of the procedural issues raised by the
driver involves error on the part of the hearing officer, and
because it was not error to fail to consider the drivers long
period of good driving in the interim, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
On September 28, 2003, Ketchikan Police Officer Brian
Perez arrested Sonja Alvarez for drunk driving. A citizen called
the police after observing what he reported as an erratic driver.
Perez was nearby and began to follow the car identified by the
caller. Perez observed the driver fail to signal at a turn and
fail to stop at a stop sign. Perez stopped Alvarez and noticed
that she had bloodshot eyes, a moderate odor of alcohol, and was
unsteady on her feet. Alvarez agreed to field sobriety tests.
Perez reported that she had eye nystagmus1 and was unable to
perform the walk and turn test. Perez asked her to take a
portable breath test. She refused. Perez then arrested Alvarez
and took her to the police station.
At the police station, Perez put a video tape in the
recorder, but the device recorded only audio for the first half
of the tape. It recorded both audio and video for the second
half. Alvarez agreed to take a breath test, but did not produce
a readout until the fifth try. Alvarez recorded a breath alcohol
concentration of .091 percent. It appears that at least one
other officer was in the room with Perez to help him use the
breathalyzer.
B. Proceedings
After Alvarezs arrest and breathalyzer test results,
Perez issued an order revoking her license and giving her notice
that the revocation would be effective in seven days in the
absence of a request for an administrative hearing. Alvarez was
subsequently charged with driving under the influence. She
timely requested a hearing, and as a result was issued a
temporary license. The hearing was scheduled for March 22, 2004,
almost six months later. In the meantime, Perez was deployed to
Iraq with the military, and the charges against Alvarez driving
under the influence and failure to stop at sign were dropped
because Perez was expected to be unavailable for at least one
year. On February 26, 2004, Alvarez wrote to the hearing officer
requesting subpoenas for the Ketchikan Public Safety Director and
the Records Custodian at the Alaska State Highway Department in
Ketchikan. In the same letter, Alvarez also asked her if Perez
would be subpoenaed. The hearing officer denied Alvarezs
requests for subpoenas, and informed her that she did not intend
to subpoena Perez.
Shortly before the hearing, Alvarez petitioned the
superior court to stay the administrative hearing, asking it to
rule that a hearing without Perez present would violate her due
process rights.2 The superior court denied the petition, noting
that there could be only two outcomes of the hearing: Either
Alvarez would prevail or the hearing would be continued until
Perezs return from Iraq. The court concluded that neither of
those two results would violate due process.
The first hearing took place on March 22, 2004.
Alvarez was present, and she called a witness to testify that she
was sober the night she was arrested. She also testified on her
own behalf. The hearing officer decided to continue the hearing
until Perezs return from Iraq. The hearing was ultimately
rescheduled for March 10, 2006, almost two years later, once
Perez had returned.
On March 1, 2006, just nine days before the hearing, an
attorney entered an appearance on behalf of Alvarez. He
immediately requested a continuance to review the evidence. The
next day the hearing officer denied the request. On March 9, one
day before the hearing, counsel for Alvarez requested the hearing
officer to subpoena the evidence custodian for the Ketchikan
Police Department, and the hearing officer denied his request.
The hearing went ahead telephonically on March 10, but Perez, who
was supposed to call in, did not. The hearing officer
rescheduled the hearing for April 27.
Perez appeared telephonically at the April 27 hearing.
The hearing officer had only two questions for Perez.3 Alvarez
then thoroughly cross-examined Perez, whose memory of events
varied. During the hearing, the hearing officer prevented
Alvarez from asking Perez questions concerning whether Perez had
reasonable suspicion to stop Alvarez. The hearing officer
reasoned that the exclusionary rule does not apply to license
suspension proceedings, and therefore it was irrelevant whether
or not Perez had reasonable suspicion to stop Alvarez.
The hearing officer suspended Alvarezs license for 90
days. Alvarez appealed to the superior court, which affirmed the
hearing officers decision. Alvarez appeals.
III. STANDARD OF REVIEW
We laid out the standard of review for license
suspension proceedings in Nevers v. State, Department of
Administration, Division of Motor Vehicles4:
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.[5]
We review an administrative hearing officers evidentiary
decisions for abuse of discretion.6
IV. DISCUSSION
A. The 31-Month Delay Before The Hearing Was Neither A
Denial Of Due Process Nor Arbitrary And Capricious.
Alvarez argues that we should reverse the 90-day
suspension of her drivers license because of the delay between
her arrest and the suspension.7 Alvarez argues primarily that a
license suspension hearing should take place within speedy trial
limits of the drunk driving arrest. She bases this argument on
our cases holding that due process requires that certain other
procedural safeguards apply to license suspensions. She also
argues that, regardless of speedy trial limits, the delay in this
case was arbitrary and capricious. We consider each of these
arguments in turn.
1. Speedy trial limits do not apply to license
suspension proceedings.
Alaska Statute 28.15.165 requires suspension of the
drivers license of any person who drives with a blood alcohol
content of .08 percent, or who refuses to take a blood alcohol
content chemical test. The driver may request an administrative
hearing within seven days; a driver who does so will be issued a
temporary license until the hearing.8 Although we have addressed
these license suspension proceedings several times, we have never
directly addressed whether the speedy trial rule applies to them.
We indirectly discussed the issue when we summarily determine[d]
that an eight-month delay between a drunk driving arrest and the
license suspension hearing did not violate due process.9 We
wrote:
Concerning his delay claim, Whitesides likens
this case to United States v. $8,850 in
United States Currency, 461 U.S. 555 (1983),
in which the United States Supreme Court held
that delay in initiating a civil forfeiture
case may violate due process and suggested a
test similar to that used to determine
whether an accuseds right to a speedy trial
in a criminal case is violated. But this case
is different from civil forfeiture cases
because Whitesides was not deprived of his
right to drive pending the hearing, whereas
in civil forfeiture cases the property to be
forfeited has typically been removed from the
possession and use of the respondent pending
the hearing.[10]
Thus, we have already distinguished license suspension
proceedings from civil forfeiture proceedings in which a speedy
trial-type rule applies. We now hold that speedy trial limits do
not attach to drivers license suspension proceedings for a number
of reasons, including that the driver is issued a temporary
license until the revocation proceeding occurs. We consider all
of these reasons now.
First, both the Alaska and United States Constitutions
grant the right to a speedy trial only with regard to criminal
proceedings,11 and a license revocation proceeding is not a
criminal proceeding. We have held that license suspension for
drunk driving is not criminal punishment.12 Furthermore, only one
of the three identified policy reasons for the speedy trial rule
directly applies in license suspension proceedings. We have said
that the purposes behind the speedy trial rule are: (1) to
prevent harming the defendant by a weakening of his case as
evidence and memories of witnesses grow stale with the passage of
time; (2) to prevent prolonged pretrial incarceration; and (3) to
limit the infliction of anxiety upon the accused because of
longstanding charges.13
Although the prevention of faded memories purpose might
apply to some license suspension proceedings, the remaining two
purposes do not. The second purpose does not apply because
licensees are issued temporary licenses pending suspension
hearings,14 and obviously licensees are not incarcerated. As to
the third purpose, loss of a drivers license is not the
equivalent of criminal punishment in its effect on a persons
professional and personal life. Finally, the exclusionary rule
does not apply.15
Because the first purpose is outweighed by the second
and third, we decline to extend the constitutional speedy trial
right, not explicitly applicable to civil cases, to license
suspension proceedings.
2. The delay did not violate due process.
Although we conclude that the right to speedy trial
does not apply, we must still determine whether the delay in this
case violated due process. To do so, we apply the Mathews v.
Eldridge framework to evaluate whether administrative proceedings
satisfy due process.16 We consider (1) the private interest that
the official action affects, (2) the risk of erroneous
deprivation of that interest through the procedures used and the
probable value, if any, of additional safeguards, and (3) the
governments interest, including fiscal and administrative
burdens, in implementing additional safeguards.17
As to the first factor, we have previously held that a
drivers license is an important property interest.18 As to the
second, we conclude that the delay in this case did not notably
increase the risk of erroneous deprivation. Moreover, any such
risk was mitigated by the grant of a temporary license until the
hearing. As to the third factor, the government has a high
interest in removing unsafe drivers from the road, and conducting
license suspension proceedings without delay increases the States
fiscal and administrative burdens and may prevent the State from
suspending the licenses of some unfit drivers.19 We conclude that
these factors weigh against Alvarezs claim.
Finally, we have never held that administrative delay
alone, without prejudice, violates due process.20 Any prejudice
to Alvarez was slight. First, she was issued a temporary permit
to drive throughout the delay. And second, Perez had made an
audio tape of the original encounter, an audio and partial video
tape of the encounter at the station, and he had recorded the
incident in his police report. This substantially mitigated any
prejudice due to Perezs faded memory.
3. Alvarezs claim that the hearing officer acted
arbitrarily and capriciously is waived.
Alvarez argues that the hearing officer acted
arbitrarily and capriciously in failing to get Perezs testimony
by telephone while he was in Iraq.21 But Alvarez did not request
that Perezs testimony be taken telephonically from Iraq at the
time. Therefore, we conclude Alvarez waived this argument by
failing to make it in the proceedings below.
B. The Hearing Officer Did Not Err In Taking Perezs
Testimony Telephonically.
Relying primarily on Whitesides v. State, Department of
Public Safety, Division of Motor Vehicles,22 Alvarez argues that
taking Perezs testimony telephonically violated her right to due
process. The State responds that Whitesides only holds that due
process requires an in-person hearing for the licensee whose
credibility is at issue, not for other witnesses. We adopt an
intermediate position: An in-person hearing is required for a
witness whose credibility is at issue.
1. Whitesides requires in-person testimony only of a
witness whose credibility is at issue.
Alaska Statute 28.15.166(e) states that a license
suspension hearing must be held by telephone unless the hearing
officer finds that a telephonic hearing would substantially
prejudice the rights of the person involved in the hearing or
that an in-person hearing is necessary to decide the issues to be
presented in the hearing. In Whitesides, we interpreted that
statute to require an in-person hearing at the request of a
licensee whose credibility is at issue.23 We reasoned that a
telephonic hearing in those circumstances would violate due
process.
But in this case, Officer Perezs credibility was not in
material dispute. The license revocation hearing was limited to
two questions: Did Officer Perez have probable cause to believe
that Alvarez was operating her vehicle while under the influence
of alcohol, and did Alvarez fail a breath alcohol concentration
test?24 There was no real dispute that Alvarez failed the breath
alcohol concentration test after her arrest, so the contested
issue at the revocation hearing was whether Officer Perez had
probable cause to believe that Alvarez was operating her vehicle
while under the influence. But on the first day of the hearing
Alvarez conceded six key observations that were noted in Officer
Perezs report. These observations demonstrated probable cause as
a matter of law.
Officer Perez noted Alvarez was driving; Alvarez
admitted she was operating a car. Officer Perez noted the odor
of alcohol; Alvarez explained this by testifying that she had a
couple of glasses of wine at dinner and that she had admitted
this fact to Officer Perez. Officer Perez noted Alvarezs
bloodshot and watery eyes; Alvarez explained this by testifying
that she had just been tending a barbecue. Officer Perez noted
Alvarez failed the eye nystagmus field sobriety test; Alvarez
explained this by testifying that she had eye problems. Officer
Perez noted Alvarez failed the walk-and-turn field sobriety test;
Alvarez explained this by testifying that [Officer Perez] ask[ed]
me to do [nine] steps. I did [thirteen]. Finally, Officer Perez
noted that Alvarez was swaying. Alvarez explained this by
testifying that she was standing on a steep street in 4-inch
heel[s].
Alvarezs explanations for Officer Perezs observations
did not cast doubt on Officer Perezs credibility. More
importantly, Alvarezs explanations did not go to the heart of the
matter: The six observations that Alvarez conceded lead to the
inescapable conclusion that Officer Perez had probable cause to
arrest her for driving under the influence.25
Because Officer Perezs credibility was not in material
dispute, we hold that Whitesides does not lead to the conclusion
that Officer Perezs telephonic testimony violated Alvarezs due
process rights.
2. Taking Perezs testimony telephonically was not
arbitrary and capricious.
Alvarez asserts, without authority, that the decision
to take Officer Perez testimony telephonically when he was back
and could testify in person was arbitrary and capricious as well
as a misinterpretation of the law. The law is to the contrary.
Alaska Statute 28.15.166(e) provides that a license suspension
hearing must be held by telephone unless the hearing officer
finds that a telephonic hearing would substantially prejudice the
rights of the person involved in the hearing or that an in-person
hearing is necessary to decide the issues to be presented in the
hearing. Thus, the law presumes that the hearing will be
telephonic unless the hearing officer finds that in-person
testimony is necessary. The hearing officer here did not abuse
her discretion under the statute. The decision, founded as it
was on statute, was not arbitrary and capricious.
C. The Hearing Officer Did Not Err In Denying Alvarezs
Requests For Subpoenas.
Alvarez argues that the hearing officer erred in
refusing to subpoena the Ketchikan Public Safety Director, the
records custodian for the Alaska State Highway Department in
Ketchikan, and the evidence custodian for the Ketchikan Police
Department. Alaska Statute 28.15.166(f)(4) gives a hearing
officer authority to issue subpoenas. The statute places no
limitations on that authority. We review the evidentiary
decisions of a lower court, or in this case a hearing officer,
for abuse of discretion.26 The hearing officer refused to issue
the subpoena for the Ketchikan Public Safety Director on the
grounds that the information Alvarez wanted could be obtained by
written discovery. She refused to subpoena the records custodian
of the Alaska State Highway Department on the grounds that the
custodians testimony would be irrelevant to the limited inquiry
of the license suspension hearing. The record does not reflect
why the hearing officer refused to subpoena the Ketchikan Police
Department evidence custodian. But as the request was made one
day before the scheduled hearing, Alvarez had been instructed to
request subpoenas at least ten days before a hearing, and the
hearing officer had already denied her an extension of time to
obtain last-minute discovery, it appears that she refused to
issue the subpoena on the grounds that it was not timely.
The hearing officer had discretion to deny these
requests for subpoenas. Alaska Statute 28.15.166(f) and (g)
explicitly limit the hearing to evidence relevant to the license
suspension.27 A hearing officer has discretion to refuse to issue
subpoenas that the hearing officer concludes would generate only
irrelevant and cumulative evidence.28
The hearing officers reasons for refusing the subpoenas
are more than adequately supported in the record. First, the
subpoena request the day before the hearing was untimely. The
hearing notice clearly stated that the hearing officer must
receive all subpoena requests at least ten days before the
hearing. Besides being untimely, the subpoena request sought
irrelevant testimony. For example, Alvarez wished to subpoena
the police evidence custodian to testify regarding Alvarezs
spoilation argument, which apparently refers to the failure of
the video camera in the station to record video for the full time
it was running. But it is unclear how this supports any of her
defenses as she never alleges that anything relevant was on that
tape.29 Evidence that the highway records custodian could have
presented concerning the condition of the roadway was not
relevant to a hearing devoted to determining if Alvarez was
driving and was under the influence. Likewise, Alvarez does not
show that the public safety director had evidence relevant to the
limited scope of the hearing.
D. The Hearing Officer Did Not Err In Limiting The
Evidence.
Alvarez argues that the superior court erred in
limiting the inquiry of the hearing to the statutory issues of
whether Perez had probable cause to arrest Alvarez for drunk
driving and whether Alvarez refused or failed the breath test.30
Alvarez points to only one incident in which the hearing officer
limited the evidence. This was when the hearing officer
prevented Alvarez from cross-examining Perez about details
leading up to the initial stop, reasoning that whether Perez had
reasonable suspicion to stop her is not relevant under AS
28.15.166(g). The hearing officer reasoned that Perezs
observations before the traffic stop were relevant only to
whether Perez had reasonable suspicion to pull Alvarez over and
conduct sobriety tests an inquiry that is irrelevant under our
case law holding that the exclusionary rule does not apply to
license suspension proceedings. The hearing officer determined
that only Perezs observations after pulling Alvarez over were
relevant to the statutory inquiry whether Perez had probable
cause to arrest Alvarez for driving while intoxicated.
The hearing officer was correct: We have held that the
exclusionary rule does not apply to license suspension hearings.31
Therefore whether or not Perez had reasonable suspicion to stop
Alvarez is irrelevant in a license suspension proceeding, and the
hearing officer did not err in excluding the evidence. Alaska
Statute 28.15.166(g) provides that the hearing
shall be limited to the issues of 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 . . . and whether (1) the
person refused to submit to a chemical
test . . .; [or] (2) the chemical test . . .
produced a result [over .08 blood alcohol
content].
We have expanded that inquiry somewhat with our case
law.32 But because we have held that the exclusionary rule does
not apply in license suspension hearings, whether there was
reasonable suspicion for the initial stop was not before the
hearing officer.
In Nevers v. State, Department of Administration,
Division of Motor Vehicles,33 in which we held that the
exclusionary rule does not apply to license suspension
proceedings, we noted certain exceptions,34 including where police
action 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.35 But Alvarez did not
allege that any of the Nevers exceptions might apply. The
hearing officer only excluded evidence related to the initial
investigatory stop, and Alvarez was able to fully cross-examine
Perez about whether he had probable cause to arrest her based on
their encounter after the stop. It was not error for the hearing
officer to limit the inquiry as she did.
E. The Hearing Officer Did Not Err In Continuing The
Hearing To Take Perezs Testimony After Perez Did Not
Appear.
Alvarez argues that the hearing officer erred in
continuing the hearing and taking Perezs testimony after he
failed to call in for the March 10, 2006, hearing. It is a bit
unclear what Alvarez thinks the hearing officer should have done.
In her brief Alvarez writes: The hearing officer misinterpreted
the law when she failed to exclude [Perezs] testimony or
otherwise sanction Officer Perez for his willful disobedience of
his subpoena.36 She also cites AS 28.15.166(d), which says that
if the licensee requests a hearing and then fails to appear, the
licensee has waived her right to a hearing, and the DMV
determination based on the police report becomes final. She
argues that the same remedy should apply if the arresting officer
fails to appear. Apparently this is another way of arguing that
the hearing officer should have excluded Perezs testimony and
relied on the existing record.
We reject Alvarezs argument as legally unsupported. A
hearing officer is not required to prohibit a witness from
testifying if the witness fails to appear. And AS 28.15.166(d)
does not require a decision on the available record if a witness
fails to appear. The law provides two penalties for witnesses
who disobey a subpoena. Alaska Civil Rule 45 allows a court to
hold in contempt a witness who disobeys a subpoena, including
administrative subpoenas.37 Alaska Statute 09.20.120 reads:
A witness who disobeys a subpoena served on
the witness shall also forfeit to the party
requiring the attendance of the witness the
sum of $50 and all damages which that party
may sustain by the failure of the witness to
attend. The forfeiture and damages may be
recovered in a civil action.
Alvarez never asked the hearing officer to hold Perez in
contempt, nor did she ask for forfeiture or damages. In any
case, the decision not to hold someone in contempt is entirely
within the lower courts or hearing officers discretion.38
Furthermore, Alvarezs argument that the hearing officer
should not have allowed Perez to testify makes little sense.
Alaska Statute 28.15.166(h) entitles Alvarez to cross-examine
Perez.39 We have stated that: 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. 40 It was
in Alvarezs interest and it was her due-process right to cross-
examine Perez. She insisted on doing so. Alvarezs argument
fails.
However, we do note our concern about the appearance of
impropriety when the hearing officer refused to continue the
hearing when Alvarezs lawyer requested a continuance, but
continued the hearing when Perez did not appear. Perez had as
much advance notice of the hearing date as had Alvarez, but the
hearing officer was much more flexible in accommodating Perez
than Alvarez. Hearing officers must not only be neutral decision
makers, they must also avoid the appearance of impropriety or
bias.41 Although we find the hearing officer did not abuse her
discretion in continuing the hearing, (and that the continuance
cured any prejudice from the denial of Alvarezs request for a
continuance),we note that her conduct in this situation may have
appeared biased.
F. The Hearing Officer Did Not Err In Refusing To
Consider Alvarezs Fitness To Drive During The Delay.
Alvarez argues that the hearing officer should have
taken into account her two and a half years of good driving
before suspending her license for 90 days. She makes two
arguments. The first compares her case to State, Department of
Commerce and Economic Development v. Schnell,42 which she claims
holds that when there is a long delay, the licensee is entitled
to be judged on current fitness to be licensed. Second, she
argues, briefly, that the hearing officer should have taken into
account her driving history over the two and a half year delay
because otherwise suspending her license for 90 days is purely
punitive, and the full protections of criminal procedure should
apply.43 She bases this argument on State v. Neidermeyer,44 in
which we explained that a drivers license suspension for drunk
driving is remedial rather than punitive because of the direct
relationship between the suspension and the States goal of
removing unsafe drivers from the road.45 If the suspension were
punitive rather than remedial, she would be entitled to the full
range of criminal procedural protections.46
As to Alvarezs first argument, Schnell is
distinguishable from this case. In Schnell, a licensed insurance
agent was convicted of a felony for failing to declare assets in
his personal bankruptcy filing.47 The Alaska Division of
Insurance then sought to remove Schnells insurance agent license
on the grounds that the felony conviction reflected
untrustworthiness.48 After a hearing, the hearing officer
recommended suspension of Schnells license.49 But the Division of
Insurance rejected the recommendation and failed to act on the
matter for almost three years, when it suspended Schnells
license.50 We remanded, requiring the Division to consider
Schnells good record during the long delay.51
But the Division of Insurance in Schnell had a great
deal of discretion in determining how to act in response to
Schnells felony conviction.52 In this case, the statutes mandate
suspension of the drivers license for a certain period when a
hearing officer finds certain facts.53 The hearing officer has no
discretion to look at other factors or evidence. The hearing
officers inquiry in this case is much narrower than the inquiry
in Schnell. Also, unlike this case, the conduct underlying the
felony conviction that led to the revocation of Schnells license
was not part of the licensed conduct. As for Alvarezs
second argument, we conclude that the long delay in this case did
not render the suspension punitive. In Neidermeyer, we addressed
whether a minor arrested for underage consumption of alcohol
unconnected with driving had a due process right to the
protections afforded a criminal defendant in the administrative
process to suspend his drivers license.54 We concluded that the
minor had a due process right to the same protections as a
criminal defendant because the license suspension was punitive
rather than remedial.55 We reasoned as follows:
In Baker v. City of Fairbanks, we defined
criminal prosecutions to include the trial of
offenses that may result in the loss of a
valuable license, such as a drivers license.
We then qualified this definition by carving
out an exception for administrative
revocations based on conduct that
demonstrates unfitness to drive:
[The category of criminal
prosecutions] does not cover
revocation of licenses pursuant to
administrative proceedings where
lawful criteria other than
criminality are a proper concern in
protecting public welfare and
safety, as the basis of revocation
or suspension in such instances is
not that one has committed a
criminal offense, but that the
individual is not fit to be
licensed, apart from considerations
of only guilt or innocence of a
crime.[56]
We concluded that license suspension for driving while
intoxicated is not a criminal prosecution because of the direct
relationship between the act of driving while intoxicated and the
administrative goal of removing unfit drivers from the roads.
But we reasoned that license suspension for underage drinking is
a criminal prosecution because the conduct triggering revocation
does not necessarily, or even probably, reflect on the arrested
minors fitness to drive.57 As discussed above, when a suspension
is remedial rather than punitive, the substantive safeguards of
criminal process such as protection from double jeopardy, the
right to jury trial, and proof beyond a reasonable doubt do not
apply.58 We conclude that the long delay in this case did not
break that essential connection between the conduct and the
administrative goals that make a license revocation remedial.
The act of driving while intoxicated is an act of unfit driving,
dangerous to the public. Suspending the drivers license, even
after a long delay in which the driver drove unexceptionably,
still furthers the administrative goal of protecting the public
and removing unfit drivers from the road. The suspension serves
to deter future unfit driving, and creates a record for the DMV
of a drivers overall fitness.59 The DMV has wide latitude to
carry out its mandate to protect the public from unfit drivers,
and we conclude that this suspension is sufficiently related to
the DMVs goals that it is remedial rather than punitive, despite
the delay.
V. CONCLUSION
We AFFIRM the 90-day suspension of Alvarezs license.
_______________________________
1 Nystagmus is a rapid, involuntary eyeball movement that
can be the result of a number of conditions, including
intoxication. Ballard v. State, 955 P.2d 931, 933 (Alaska App.
1998) overruled on other grounds by State v. Coon, 974 P.2d 386
(Alaska 1999).
2 She did not request that Perez be made available by
telephone at any point.
3 She asked whether he prepared the police report of
Alvarezs arrest, and whether there were any other officers
present when Alvarez took her breath test at the station.
4 123 P.3d 958 (Alaska 2005).
5 Id. (internal citations omitted).
6 Stein v. Kelso, 846 P.2d 123, 126 (Alaska 1983).
7 Although Alvarezs 90-day suspension has already run, we
have previously held that the collateral consequences of license
suspension, such as higher insurance rates and adverse employment
consequences, render these appeals not moot. Graham v. State,
633 P.2d 211, 213 (Alaska 1981). The State has not argued that
this appeal is moot.
8 AS 28.15.166(b)-(c).
9 Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1134 (Alaska 2001).
10 Id.
11 Section 11 of the Alaska Constitution reads: In all
criminal prosecutions, the accused shall have the right to a
speedy and public trial, by an impartial jury of twelve. The
Sixth Amendment of the United States Constitution reads: In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . . We have
already held that the right to a jury trial does not attach to
license suspension proceedings. Thorne v. State, Dept of Pub.
Safety, 774 P.2d 1326, 1329-31 (Alaska 1989). This is not to say
that speedy trial limits are never an appropriate measure of due
process in civil matters. See United States v. $8,850 in United
States Currency, 461 U.S. 555 (1983).
12 State, Dept of Pub. Safety, Div. of Motor Vehicles v.
Niedermeyer, 14 P.3d 264, 270 (Alaska 2000).
13 Rutherford v. State, 486 P.2d 946, 947 (Alaska 1971).
14 AS 28.15.166(c).
15 See infra Part IV.D.
16 Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1134 (Alaska 2001) (citing Mathews v.
Eldridge, 424 U.S. 319 (1976)). The State argues that in State
v. Schnell, 8 P.3d 351 (Alaska 2000), we created a four-part test
to use to evaluate whether a delay in an administrative
proceeding requires the agency to rescind its administrative
action. The State misinterprets Schnell. Schnell applied the
standard four-part test for estoppel to the fact pattern in that
case, and held that the government was not estopped from
rescinding Schnells insurance agent license on the grounds that
the government had indicated it would not suspend his license and
he relied on that indication. Id. at 356. That case did not
discuss due process, and Alvarez does not argue that the
government told her it would not suspend her license and that she
relied on that statement to her detriment. See id.
17 Whitesides, 20 P.3d at 1135. See also Brandal v. State,
Commercial Fisheries Entry Comm., 128 P.3d 732, 738 (Alaska 2006)
(where agency failed to take final action on fishermans
application for limited entry permit for 22 years, in addition to
Mathews factors we analyzed factors from Fed. Deposit Ins. Corp.
v. Mallen that United States Supreme Court uses to determine
whether extended delay violates due process: the importance of
the private interest and the harm to this interest occasioned by
delay[,] the justification offered by the Government for delay
and its relation to the underlying governmental interest[,] and
the likelihood that the interim decision may have been mistaken,
and noting that these factors closely track the Mathews factors)
(quoting Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 242
(1988)).
18 Whitesides, 20 P.3d at 1135. In Whitesides the drivers
license was suspended for one year. Id. at 1134. We did not
discuss the length of the suspension in our analysis, and the
State does not argue that a 90-day suspension might be a lesser
property interest than a full year suspension.
19 This is especially true considering the due process
requirement of an in-person hearing for a licensee whose
credibility is at issue. In Whitesides, we concluded that the
burden to the State in conducting an in-person hearing in those
circumstances was low in part because hearing officers can limit
their travel to times when they have several cases for hearing.
20 P.3d at 1138.
20 Brandal, 128 P.3d at 740.
21 Alvarez also argues that the hearing officers
unilateral decision to postpone matters another year until her
return from maternity leave . . . was also arbitrary [and]
capricious. But from the record it does not appear that the
hearing officers maternity leave affected the delay. It appears
that, before she went on leave, the Ketchikan Police Department
informed the hearing officer that Perez would be abroad for
another 18 months. After her maternity leave, about 16 months
later, she called again to find out if Perez maybe came back
early. In fact, Perez had been back for a full year. Although
we are somewhat concerned that the DMV did not do a better job of
keeping track of Perez, it does not appear that the hearing
officer postponed the hearing due to her maternity leave.
22 20 P.3d 1130 (Alaska 2001).
23 Id. at 1132.
24 AS 28.15.166(g).
25 See, e.g., Anchorage v. Cook, 598 P.2d 939, 942 (Alaska
1979) (holding officer had probable cause to arrest for DUI in
light of defendants inability to perform the [sobriety] test that
he attempted, together with [the officers] other observations);
Bertilson v. State, 64 P.3d 180, 184 (Alaska App. 2003)
(concluding officers had probable cause after they observed that
defendants eyes were watery and bloodshot and that he had an odor
of alcohol, and that defendant failed the heel-to-toe and
horizontal gaze nystagmus tests); Russell v. Municipality of
Anchorage, 706 P.2d 687, 689 (Alaska App. 1985) (holding officers
had probable cause because [i]n addition to [defendants]
appearance and the strong odor of alcohol, the officers were
aware of his inability to perform certain tests of manual
dexterity).
26 Stein v. Kelso, 846 P.2d 123, 126 (Alaska 1993).
27 AS 28.15.166(f) gives the hearing officer authority to
receive relevant evidence. Section (g) limits the subject matter
of the hearing.
28 See Gibson v. Geico General Ins. Co., 153 P.3d 312, 316
(Alaska 2007). See also Alaska R. Civ. P. 26(b)(2) (The frequency
or extent of use of the discovery methods otherwise permitted
under these rules shall be limited by the court if it determines
that: (i) the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive. . .); Alaska R.
Evid. 401, 402.
29 Alvarez only alleges that the tape would show that
Perez failed to observe her for 15 minutes before taking her
breath sample, but she does not allege that anything happened in
that 15 minutes that would change her breathalyser result. She
also alleges that the video would show fiddling and adjusting of
the tape which this machine is not suppose[d] to require, but she
does not say which machine or how that is relevant to her case.
Assuming the machine is the breathalyzer, and not the tape
recorder, this could support her argument that her test result
was incorrect. But the records custodian would have no knowledge
of that.
30 AS 28.15.166(g).
31 Nevers v. State, Dept of Admin., Div. of Motor
Vehicles, 123 P.3d 958, 964 (Alaska 2005).
32 See Thorne v. State, Dept of Pub. Safety, 774 P.2d
1326, 1329 (Alaska 1989) (holding that procedural safeguards
include the right to consider the inherent margin of error in
breathalyzer test results).
33 123 P.3d at 958.
34 Id. at 963-64. We left room for the possibility that
the exclusionary rule might apply in two unique circumstances,
neither of which have been alleged in this case:
We recognize that there may be two exceptions
to our conclusion that the exclusionary rule
is inapplicable in license revocation
proceedings. First, where a Fourth Amendment
violation stems from a lack of probable cause
for a DWI 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.
Second, . . . a search for blood evidence in
direct violation of . . . statutory
prohibitions would probably require exclusion
of the test results in a subsequent
administrative license revocation
proceeding . . . .
35 Id. at 964 (quoting State v. Sears, 553 P.2d 907, 914
(Alaska 1976)). We recognize there is some confusion in the case
law, and take this opportunity to affirm Nevers. Just a few
months after Nevers, we issued an opinion in Saltz v. State, in
which we analyzed whether or not an officer had reasonable
suspicion to stop a suspected drunk driver in an appeal from a
license suspension, without referring to Nevers. Saltz v. State,
Dept of Admin., Div. of Motor Vehicles, 126 P.3d 133 (Alaska
2005). In 2007 we addressed an exclusionary rule appeal from a
license suspension, and did not address the conflict between
Nevers and Saltz. Hartman v. State, Dept of Admin., Div. of
Motor Vehicles, 152 P.3d 1118 (Alaska 2007). In Hartman, we
treated Nevers as good law, but ultimately held that there was
reasonable suspicion for the stop. Id. at 1122. Because there
was reasonable suspicion for the stop, we concluded that we did
not need to reach the question of whether a Nevers exception
applied. Id. Despite Saltz, we affirm the holding in Nevers
that the exclusionary rule does not apply as a matter of course
in license suspension proceedings.
36 The State argues that she waived this argument by not
objecting to the continuation of the hearing at the time, but we
disagree. Although her attorneys objection was somewhat vague
and unclear, he did object to the continuance at the time.
37 The same rule applies in criminal proceedings. Alaska
R. Crim. P. 17(g).
38 Stuart v. Whalers Cove, Inc., 144 P.3d 467, 469 (Alaska
2006).
39 AS 28.15.166(h) reads:
The determination of the hearing officer may
be based upon the sworn report of a law
enforcement officer. The law enforcement
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
law enforcement officer is necessary to
enable the hearing officer to resolve
disputed issues of fact, the hearing may be
continued to allow the attendance of the law
enforcement officer.
40 Hartman, 152 P.3d at 1124 (quoting Graham v. State, 633
P.2d 211, 216 n.12 (Alaska 1981)). We note that present here
includes presence by telephone. See Gregg v. Gregg, 776 P.2d
1041, 1044 (Alaska 1989) (holding that an oath taken by an out-of-
state witness participating in an Alaska proceeding by telephone
is valid due to the witness constructive presence in the
courtroom and ability to provide testimony).
41 Although DMV hearing officers are not within the
jurisdiction of the Officer of Administrative Hearings (AS
44.64.030), the code of conduct for those hearing officers should
give guidance to DMV hearing officers. AS 44.64.050 requires
that hearing officers avoid impropriety or the appearance of
impropriety, and perform the duties of the office impartially and
diligently.
42 8 P.3d 351 (Alaska 2000).
43 Although her argument on this point is somewhat
unclear, we generally address a pro se appellants arguments if
her briefing was such that we could discern [her] legal arguments
and the appellee could reply to them. Gilbert v. Sperbeck, 126
P.3d 1057, 1062 (Alaska 2005) (internal citations omitted). The
State responds to her argument also briefly. It argues summarily
that, despite the delay, the 90-day suspension served the
administrative goal of removing unfit drivers from the road. The
State also argues that she waived this argument by failing to
raise it in the proceedings below, but we disagree. Although her
legal arguments could have been clearer, she did argue before the
hearing officer that to suspend the license of a fit driver can
only be described as an act of punishment, and she did argue that
the hearing officer should take into account her good driving
record during the delay.
44 14 P.3d 264 (Alaska 2000).
45 Id. at 268-69.
46 See id.
47 8 P.3d at 354.
48 Id.
49 Id.
50 Id. at 354-55.
51 Id. at 360.
52 Id. (the director has broad discretion to decide what
sanction is appropriate).
53 AS 28.15.165, .166.
54 14 P.3d 264 (Alaska 2000).
55 Id. at 268.
56 Id. at 269 (quoting Baker v. Fairbanks, 471 P.2d 386,
402 n.28 (Alaska 1970)).
57 Id. at 270.
58 See id. at 269; Thorne v. State, Dept of Pub. Safety,
774 P.2d 1326, 1329 (Alaska 1989).
59 See AS 28.15.151 (directing that the DMV keep a record
of every license that has been suspended . . . and the reason for
[the] action[]).
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