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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 (3/18/2011) sp-6546
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. 6546 - March 18, 2011
)
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 driver's 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
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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 driver's 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
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).
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After Alvarez's 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 Alvarez's 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 Perez's 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
Perez's return from Iraq. The hearing was ultimately rescheduled for March 10, 2006,
almost two years later, once Perez had returned.
2 She did not request that Perez be made available by telephone at any point.
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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 Alvarez's license for 90 days. Alvarez
appealed to the superior court, which affirmed the hearing officer's decision. Alvarez
appeals.
III. STANDARD OF REVIEW
We laid out the standard of review for license suspension proceedings in
4
Nevers v. State, Department of Administration, Division of Motor Vehicles :
We review license revocation hearings under AS
28.15.166(m), which provides that the court may "reverse the
3 She asked whether he prepared the police report of Alvarez's 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).
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department's determination if the court finds that the
department misinterpreted the law, acted in an arbitrary and
capricious manner, or made a determination unsupported by
the evidence in the record." Where the superior court acts as
an intermediate court of appeals, we independently review the
hearing officer's 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 officer's 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 driver's
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.
5 Id. (internal citations omitted).
6 Stein v. Kelso, 846 P.2d 123, 126 (Alaska 1983).
7 Although Alvarez's 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.
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1. Speedy trial limits do not apply to license suspension
proceedings.
Alaska Statute 28.15.165 requires suspension of the driver's 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 accused's 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
8 AS 28.15.166(b)-(c).
9 Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d
1130, 1134 (Alaska 2001).
10 Id.
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limits do not attach to driver's 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 criminalpunishment.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
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, Dep't 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, Dep't 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).
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hearings,14 and obviously licensees are not incarcerated. As to the third purpose, loss of
a driver's license is not the equivalent of criminal punishment in its effect on a person's
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
14 AS 28.15.166(c).
15 See infra Part IV.D.
16 Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d
1130, 1134 (Alaska 2001) (citingMathews 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 Schnell's 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.
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probable value, if any, of additional safeguards, and (3) the government's interest,
including fiscal and administrative burdens, in implementing additional safeguards.17
As to the first factor, we have previously held that a driver's 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 State's 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 Alvarez's claim.
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 fisherman's 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 driver's 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.
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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 Perez's faded memory.
3. Alvarez's 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 Perez's testimony by telephone while he was in Iraq.21 But Alvarez did not
request that Perez's 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 Perez's Testimony
Telephonically.
1. Whitesides does not require that Officer Perez's testimony be
taken in person.
20 Brandal, 128 P.3d at 740.
21 Alvarez also argues that "the hearing officer's 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 officer's
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.
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Relying primarily on Whitesides v. State, Department of Public Safety,
Division of Motor Vehicles,22 Alvarez argues that taking Perez's testimony telephonically
violated her right to due process. The State responds that Whitesides holds that due
process requires an in-person hearing only for a licensee whose credibility is at issue, not
for other witnesses. We conclude that an in-person hearing was not required because
Perez's credibility was not 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 Perez's 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
22 20 P.3d 1130 (Alaska 2001).
23 Id. at 1132.
24 AS 28.15.166(g).
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were noted in Officer Perez's 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 Alvarez's 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]."
Alvarez's explanations for Officer Perez's observations did not cast doubt
on Officer Perez's credibility. More importantly, Alvarez's 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
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 defendant's "inability to perform
the [sobriety] test that he attempted, together with [the officer's] other observations");
Bertilson v. State, 64 P.3d 180, 184 (Alaska App. 2003) (concluding officers had
probable cause after they observed that defendant's "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 [defendant's]
appearance and the strong odor of alcohol, the officers were aware of his inability to
(continued...)
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Because Officer Perez's credibility was not in material dispute, we decline
to reach the question whether Whitesides should be extended to require the in-person
testimony of any material witness whose testimony is in dispute, leaving that question
for resolution in a case involving such a witness.
2. Taking Perez's 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 Alvarez's 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
25 (...continued)
perform certain tests of manual dexterity").
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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 custodian's 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
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.
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The hearing officer's 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 Alvarez's
"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
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).
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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 Perez's
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 Perez's 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,
31 Nevers v. State, Dep't of Admin., Div. of Motor Vehicles, 123 P.3d 958, 964
(Alaska 2005).
32 See Thorne v. State, Dep't 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").
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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
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,
Dep't 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, Dep't of Admin., Div. of Motor
Vehicles, 152 P.3d 1118 (Alaska 2007). InHartman, we treatedNevers as good law, but
ultimately held that there was reasonable suspicion for the stop. Id. at 1122. Because
(continued...)
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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
Perez's Testimony After Perez Did Not Appear.
Alvarez argues that the hearing officer erred in continuing the hearing and
taking Perez's 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
[Perez's] 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 Perez's testimony
and relied on the existing record.
35 (...continued)
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 attorney's
objection was somewhat vague and unclear, he did object to the continuance at the time.
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----------------------- Page 19-----------------------
We reject Alvarez's 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 court's - or hearing officer's - discretion.38
Furthermore, Alvarez's 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
37 The same rule applies in criminal proceedings. Alaska R. Crim. P. 17(g).
38 Stuart v. Whaler's 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
(continued...)
-19- 6546
----------------------- Page 20-----------------------
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
Alvarez's interest - and it was her due-process right - to cross-examine Perez. She
insisted on doing so. Alvarez's argument fails.
However, we do note our concern about the appearance of impropriety
when the hearing officer refused to continue the hearing when Alvarez's 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 Alvarez's
39 (...continued)
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.
-20- 6546
----------------------- Page 21-----------------------
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 Alvarez's
"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. Niedermeyer,44 in which we
explained that a driver's license suspension for drunk driving is "remedial" rather than
"punitive" because of the direct relationship between the suspension and the State's goal
42 8 P.3d 351 (Alaska 2000).
43 Although her argument on this point is somewhat unclear, we generally
address a pro se appellant's 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).
-21- 6546
----------------------- Page 22-----------------------
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 Alvarez's 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 Schnell's insurance agent license on the grounds that the felony conviction
reflected untrustworthiness.48 After a hearing, the hearing officer recommended
suspension of Schnell's license.49 But the Division of Insurance rejected the
recommendation and failed to act on the matter for almost three years, when it suspended
Schnell's license.50 We remanded, requiring the Division to consider Schnell's 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 Schnell's felony conviction.52 In this case, the
statutes mandate suspension of the driver's license for a certain period when a hearing
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").
-22- 6546
----------------------- Page 23-----------------------
officer finds certain facts.53 The hearing officer has no discretion to look at other factors
or evidence. The hearing officer's 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 Schnell's license was not part of the licensed conduct.
As for Alvarez's second argument, we conclude that the long delay in this case did
not render the suspension punitive. In Niedermeyer, 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 driver's 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 driver's 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
53 AS 28.15.165, .166.
54 14 P.3d 264 (Alaska 2000).
55 Id. at 268.
-23- 6546
----------------------- Page 24-----------------------
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 minor's 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 driver's 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 driver's overall
fitness.59 The DMV has wide latitude to carry out its mandate to protect the public from
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, Dep't 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[]").
-24- 6546
----------------------- Page 25-----------------------
unfit drivers, and we conclude that this suspension is sufficiently related to the DMV's
goals that it is "remedial" rather than "punitive," despite the delay.
V. CONCLUSION
We AFFIRM the 90-day suspension of Alvarez's license.
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----------------------- Page 26-----------------------
In the Supreme Court of the State of Alaska
Sonja Alvarez, )
) Supreme Court No. S-12768
Appellant, )
v. ) Order
) Petition for Rehearing
State of Alaska, Department of )
Administration, Division of Motor )
Vehicles, )
)
Appellee. ) Date of Order: 3/18/11
)
Trial Court Case # lKE-04-0011SCI
Before: Carpeneti, Chief Justice, Eastaugh, Fabe, and Winfree, Justices.
Appellee State ofAlaska petitioned for rehearing ofthe opinion issued on
8/1311 0. Appellant Sonja Alvarez did not file a response to the petition for rehearing as
allowed by the court's 1114111 order. The State's petition for rehearing is GRANTED,
Opinion No. 6500, issued on 8/1311 0, is WITHDRAWN, and attached Opinion No. 6546
is issued on this date in its place.
The changes effected by Opinion No. 6500 are the following:
1. Subheading IV.B.I., found on page 11, has been moved up three
sentences in the opinion, so that it immediately follows Heading B.
2. Subheading IV.B.I. has been changed to read" Whitesides does not
require that Officer Perez's testimony be taken in person."
3. The last sentence ofthe first paragraph of Subheading IV.B.I. has
been changed to read, "We conclude that an in-person hearing was
not required because Perez's credibility was not at issue."
4. The last sentence ofthe last paragraph ofSubheading IV.B.I., found
on page 13, has been changed to read, "Because Officer Perez's
credibility was not in material dispute, we decline to reach the
----------------------- Page 27-----------------------
Sonja Alvarez v. State o/Alaska, DMV
Supreme Court No. S-12768
Order of 3/18/11
Page Two
question whether Whitesides should be extended to require the in
person testimony of any material witness whose testimony is in
dispute, leaving that question for resolution in a case involving such
a witness."
Entered by direction ofthe court.
Clerk of the Appellate Courts
cc: Supreme Court Justices
Judge Thompson
Trial Court Appeals Clerk
Publishers
Distribution:
Margaret Paton Walsh
Assistant Attorney General
1031 West Fourth Avenue Suite 200
Anchorage AK 9950 I
Sonja Alvarez
P.O. Box 7933
Ketchikan AK 9990 I
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