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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Garibay v. State, Dept. of Administration, Division of Motor Vehicles (11/28/2014) sp-6970

Garibay v. State, Dept. of Administration, Division of Motor Vehicles (11/28/2014) sp-6970

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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JOE D. GARIBAY,                                      )  

                                                     )        Supreme Court No. S-15017  

                          Appellant,                 )  

                                                     )        Superior Court No. 4FA-11-01772 CI  

                  v.                                 )  

                                                     )        O P I N I O N  

STATE OF ALASKA,                                     )  

DEPARTMENT OF                                        )       No. 6970 - November 28, 2014  

ADMINISTRATION, DIVISION                             )  

OF MOTOR VEHICLES,                                   )  


                          Appellee.                  )  


                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.  

                  Appearances:  Robert A. Sparks, Law Office of Robert A.  

                  Sparks, and Robert John, Fairbanks, for Appellant.  Erling T.  


                  Johansen and Kathryn Vogel, Assistant Attorneys General,  


                  Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  


                  Juneau, for Appellee.  

                  Before:   Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  After a woman reported having an altercation with Joe Garibay in a store,  


the police stopped him, then arrested him for driving under the influence of alcohol.  The  


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Department of Motor Vehicles revoked Garibay's driver's license for 90 days, and the  


superior court affirmed the revocation.  Garibay appeals, arguing that the police stop  

constituted an unconstitutional search and seizure requiring that evidence of his drinking  


be excluded from the license revocation proceedings. We affirm on the basis of our prior  


cases, which hold that the exclusionary rule applies in license revocation proceedings  

only in exceptional circumstances not present here.  


                   Joe Garibay was at the Sam's Club in Fairbanks when he collided with a  


woman's shopping cart, waking her baby.1  

                                                                  The woman  demanded an apology, but  

Garibay swore at her instead.  Assuming he was drunk because of the beer in his cart and  


his threatening manner, the woman called the police, then followed Garibay out to the  


parking lot to get his license plate number.  When a police officer arrived a few minutes  


later, the woman told him that Garibay was "maybe . . . a drunk," that he had threatened  


her in front of her children, and that she wanted him charged with assault. Informed that  

an assault charge was unlikely, the woman asked that the police at least "find that guy  


to make sure he's not drunk." The officer assured her that they would try to find Garibay  

and "make sure he's not, you know, drunk driving, something like that."  


                   The police located Garibay's empty vehicle shortly afterward in a nearby  

parking lot.  Officer Fett parked behind it and activated his emergency lights.  When  

Garibay returned, he attempted to back out of the parking space despite the police car  

behind him; he apparently did not notice he was blocked in until Officer Fett knocked  


on his window.  Another officer arrived, and both officers spoke with Garibay.  Although  

          1        The facts of this altercation are the subject of police reports but were not  


adjudicated; they are recited here only to place the actions of the police in the context of  

what they had been told.  

                                                             -2-                                                         6970  

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he told them he had not consumed any alcohol that day, the officers observed that he  

swayed, had bloodshot and watery eyes, and smelled strongly of alcohol.  He failed three  

field sobriety tests and blew .128 on the preliminary breath test.  The officers arrested  


him for driving under the influence of alcohol and for possessing firearms while in an  



impaired state.   They then tested him again using the Datamaster breath testing machine,  


which showed a breath alcohol content of .111.  As a result, the Department of Motor  

Vehicles (DMV) revoked Garibay's license for 90 days.  


                    Garibay        appealed   the   license   revocation,   and   the   DMV   held   an  


administrative hearing.  Garibay was represented by counsel, who cross-examined both  


police officers involved in the arrest. It was Garibay's position that the officers' conduct  


in approaching his vehicle constituted  an illegal investigative stop.  But the hearing  

                                                                3  instructed Garibay's attorney not to inquire  

officer, citing prior decisions of this court,   

about the stop's legality.  The hearing officer concluded that the legality of the stop was  


not relevant in a license revocation proceeding, that there was probable cause to believe  


Garibay was operating a motor vehicle while under the influence of alcohol, and that the  


Datamaster breath test demonstrated that Garibay's breath alcohol limit was over the  


legal      limit     -      thus      satisfying        the    requirements           of     the     revocation         statute,  

          2         See AS 11.61.210(a)(1) (defining fourth-degree weapons misconduct to  

include  a  person's  possession  of  a  firearm  "when  the  person's  physical  or  mental  


condition is impaired as a result of the introduction of an intoxicating liquor").  

          3         See  Alvarez v. State, Dep't of Admin., Div. of Motor Vehicles, 249 P.3d  

286,  296  (Alaska  2011)  (holding,  in  part,  that  whether  the  police  have  reasonable  


suspicion to stop a driver is irrelevant in a license suspension proceeding because the  

exclusionary  rule  does  not  apply);  Nevers  v.  State,  Dep't  of  Admin.,  Div.  of  Motor  


Vehicles, 123 P.3d 958, 966 (Alaska 2005) (holding that the exclusionary rule does not  


apply to license revocation hearings as a general rule).  

                                                               -3-                                                         6970

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AS 28.15.166(g).   The hearing officer therefore affirmed the 90-day license revocation.  


                    Garibay appealed the agency decision to the superior court, arguing again  


that the investigative stop was illegal. Like the hearing officer, the superior court held  


that the legality of the stop was irrelevant in license revocation proceedings and therefore  

affirmed the revocation of Garibay's license.  


                    Garibay appeals, arguing again that the investigative stop was illegal and  


that this divested the DMV of jurisdiction to revoke his license.  He also argues that the  


exclusionary rule should apply in civil license revocation proceedings, and alternatively  


that the exclusionary rule should at least apply to his case because the police conduct was  



                   We set out the standards of review relevant here in our earlier decisions  

involving the application of the exclusionary rule in license revocation proceedings:  


                   We        review         license        revocation           hearings          under  


                   AS 28.15.166(m), which provides that the court may reverse  

                   the  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  

          4        As relevant here, the statute states that administrative review of a revocation  

decision  "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 had chemical test results that violated  


the statutory limits.  

                                                             -4-                                                       6970

----------------------- Page 5-----------------------

                   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.  



          A.	      The Exclusionary Rule Generally Does Not Apply In License  

                   Revocation Proceedings.  


                   Under the exclusionary rule, "evidence obtained from an unconstitutional  

search  or  seizure  is  inadmissible  and  must  be  excluded."6  

                                                                                            In  Nevers  v.  State  we  

considered for the first time whether the exclusionary rule should apply to search and  

                                                                          7	                              8 

seizure violations in license revocation proceedings.   Citing State v. Sears,  we balanced  


the  costs  of  applying  the  rule  against  its  benefits.     On  the  cost  side,  we  noted  that  


"application of the exclusionary rule to license revocation hearings will in some cases  


frustrate the important state interest in keeping drunk drivers off the road by excluding  


pertinent evidence"; "will significantly increase the administrative burden of what is  

intended to be an informal process," particularly given that "hearing officers in Alaska  

need  not  even  be  lawyers";  and  will  likely  "result  in  longer  and  more  complicated  

          5        Alvarez , 249 P.3d at 290-91 (quoting Nevers , 123  P.3d at 961) (internal  

quotation marks omitted).  

          6        Nevers , 123 P.3d at 962 (citing Ellison v. State , 593 P.2d 640, 718 (Alaska  


          7        Id. at 962 n.16.  

          8        553 P.2d 907, 912-14 (Alaska 1976).  

          9        Nevers , 123 P.3d at 963-64.  

                                                             -5-	                                                     6970

----------------------- Page 6-----------------------


hearings   in  many   cases."      On  the   benefit   side,   we   considered  the   likelihood  that  

applying  the  rule  in  license  revocation  proceedings  would  "deter  unlawful  police  

conduct,"  concluding  that  the  effect  would  be  insignificant  "because  the  police  are  


already sufficiently deterred from such unlawful conduct by  the applicability of the  

exclusionary  rule  to  all  criminal  cases  that  may  result  from  their  investigations."11  

Finding that the costs significantly outweighed the potential benefits, we held that the  


exclusionary  rule was inapplicable to  license revocation  proceedings -  with  a  few  


exceptions, discussed below.                     

                    In  a  subsequent  case,  Alvarez  v.  State,  Department  of  Administration,  


Division of Motor Vehicles , we affirmed a hearing officer's decision to preclude cross- 


examination of the arresting officer about "details leading up to the initial stop."13                                       We  


agreed with the hearing  officer "that only [the arresting officer's] observations  after  


pulling Alvarez over were relevant to the statutory inquiry whether [the arresting officer]  


had probable cause to arrest Alvarez for driving while intoxicated."14  We explained that  


"whether  or  not  [the  arresting  officer]  had  reasonable  suspicion  to  stop  Alvarez  is  


irrelevant in a license suspension proceeding."15  

                    Applying Nevers and Alvarez in this case, the hearing officer was correct  

to rule that the exclusionary rule did not apply to Garibay's license revocation hearing.  

          10        Id. at 963.  

          11        Id. at 964.  

          12        Id.  

          13        249 P.3d 286, 295 (Alaska 2011).  

          14        Id. at 296 (emphasis in original).  

          15        Id.  

                                                               -6-                                                         6970

----------------------- Page 7-----------------------

          B.         The Exceptions Noted In Nevers Do Not Apply To This Case.  


                     In Nevers we did note certain exceptional circumstances that would justify  


application of the exclusionary rule in license revocation proceedings.  We held that the  

rule would apply if there is "police misconduct which shocks the conscience, or is of a 


 nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself  


                                                          In a footnote we set out another exception relevant  

from benefits derivable therefrom." 


here:  "where a Fourth Amendment violation stems from a lack of probable cause for a  


DWI arrest, . . . 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." 

Garibay  argues  that  these  exceptions  allow  him  to  challenge  the  legality  of  the  

investigative stop at the license revocation hearing, but we disagree.  


                     First, we reject Garibay's argument that "the police action in this case was  


shocking misconduct, because of the completely speculative basis for the police officer's  

investigative stop."  The investigative stop was based on the report of the woman at  


Sam's Club, who suspected from Garibay's actions and demeanor that he was drunk.  

Garibay did not present any facts to indicate that the officers who stopped him acted  


deliberately  to  violate  his  constitutional  rights                         or  that  they  engaged  in  any  other  

shocking behavior.  We see no basis for applying the exception to this case.  

                     Also inapplicable is the exception that requires exclusion of evidence where  


the DUI arrest is not based on probable cause.  Garibay frames the relevant time as the  

          16         Nevers , 123 P.3d at 964 (quoting                 State v. Sears, 553 P.2d 907, 914 (Alaska     

1976)) (internal quotation marks omitted).  

          17        Id. at 964 n.21.  



                     See Fraiman v. State, Dep't of Admin., Div. of Motor Vehicles, 49 P.3d 241,  

245 (Alaska 2002).  

                                                                 -7-                                                          6970

----------------------- Page 8-----------------------

moment of the investigative stop rather than the arrest.  But his argument is precluded  


by our decision in Alvarez , where we affirmed the hearing officer's determination that  

"only [the arresting officer's] observations after pulling Alvarez over were relevant to  


the statutory inquiry whether [the arresting officer] had probable cause to arrest Alvarez  



for driving while intoxicated."                   Here, after stopping Garibay in his attempt to back out  


of his parking space, the officers observed that he had bloodshot, watery eyes, smelled  


strongly of alcohol, had balance issues, failed several field sobriety  tests, and had a  

preliminary  breath  test  result  significantly  over  the  legal  limit.    These  observations  


                                                                         that Garibay had committed the offense  

"would warrant a prudent person in believing" 


                                                                                              Because the officers had  

of operating a vehicle while under the influence of alcohol. 


probable cause to arrest Garibay at the relevant moment - the moment of his arrest for  

DUI - the second Nevers exception does not apply here either.22  

          C.        The DMV Had Jurisdiction To Revoke Garibay's License.  


                    Under  the  implied  consent  statute,  AS  28.35.031(a),  "[a]  person  who  


operates or drives a motor vehicle in this state . . . shall be considered to have given  


consent" to a test to determine the person's blood or breath alcohol concentration, if that  

person is "lawfully arrested" for  driving under the influence of alcohol.  Garibay argues  


that this "lawful arrest" component of the implied  consent statute must be read into  

          19        Alvarez , 249 P.3d at 296  (emphasis in original).  

          20        State v. Blank, 90 P.3d 156, 162 n.38 (Alaska 2004) (citing                            Schmid v. State,  

615 P.2d 565, 574 (Alaska 1980)).  

          21        AS 28.35.030(a).  



                    "Probable cause to arrest exists if the facts and circumstances known to the  

officer would warrant a prudent person in believing that the defendant had committed  

an offense."  Blank , 90 P.3d at 162 n.38 (citing Schmid, 615 P.2d at 574).  

                                                               -8-                                                         6970

----------------------- Page 9-----------------------

AS 28.15.166(g), the statute providing for administrative review of a license revocation,             

such that the DMV lacks the authority to revoke a license absent a "lawful arrest."                                                 We  

reject this argument too as inconsistent with our prior cases.  


                     In Javed v. Department of Public Safety, Division of Motor Vehicles , we  

explained that although AS 28.15.166(g)(1) cites the implied consent statute, its focus  


"is  clearly  on  the  result  of  the  test  or  the  fact  of  refusal  to  take  the  test."                                    Our  

explanation continued:  

                     Reading subsection .166(g)(1)-(3) to encompass an inquiry  


                     into the underlying facts that justify administration of the test  

                     would render the first part of subsection .166(g), regarding  

                     the   issue   of   whether   the   law   enforcement   officer   had  

                     reasonable grounds to believe that the person was operating  


                     a motor vehicle, almost meaningless.  The statute offers very  


                     precise  limiting  language  for  the  issues  that  are  to  be  

                     considered.  There is no reason to believe that the reference  

                     to  the  implied  consent  statutes  is  anything  more  than  a  


                     descriptive tool used to identify the "chemical test" named in  



                     each instance.  


The statute thus does not require an inquiry into the lawfulness of the investigative stop  

at the administrative review hearing.  

                     For his contrary reading of the statute, Garibay relies on the dissent in  

Hartman v. State, Department of Administration, Division of Motor Vehicles .25                                                     The  


dissent concluded that the investigative stop in Hartman was unlawful, and that therefore  


"[t]he ensuing arrest was also unlawful because [the trooper] established probable cause  

           23        921 P.2d 620, 625 (Alaska 1996).  

           24        Id.  

           25         152 P.3d 1118, 1126-30 (Alaska 2007) (Eastaugh, J., dissenting).  

                                                                  -9-                                                            6970

----------------------- Page 10-----------------------


to arrest Hartman with information gathered during the unlawful stop."                                             

                     But the dissent in Hartman is not the law in Alaska, and it conflicts with  


Nevers , which  is the law in Alaska.  The police unlawfully entered Nevers's home,  



questioned him, and gave him a preliminary breath test that showed he was intoxicated. 

They then arrested him.  Nevers tried to exclude the results of the breath test because of  


the police's unlawful entry.28  We held, however, that the results could not be suppressed  


because  the  exclusionary  rule  does  not  apply  to  license  revocation  proceedings.29  

Nevers's arrest was based on probable cause; the problem was that the probable cause  


was the result of an unlawful entry into his home.  In a criminal proceeding, under the  

exclusionary rule, the police's illegal conduct would invalidate the breath test and the  



subsequent arrest.              But in a license revocation proceeding, because the exclusionary  


rule does not apply, illegal police conduct prior to arrest does not invalidate the arrest  

                                                      31   As the dissent in Hartman recognized, it is the  


unless it "shocks the conscience."  

exclusionary rule that acts to invalidate an arrest by taking out of the equation some  


evidence on which probable cause to arrest was based;32  without the exclusionary rule,  


          26         Id.  

          27         Nevers v. State, Dep't of Admin., Div. of Motor Vehicles , 123 P.3d 958,  

960-61 (Alaska 2005).  

          28         Id.

          29         Id. at 963.

        See id. at 962.  

          31         Id. at 964.  

          32         Hartman v. State, Dep't of Admin., Div. of Motor Vehicles                               , 152 P.3d 1118,  


                                                                -10-                                                          6970

----------------------- Page 11-----------------------

the evidence stays in and the arrest stands.  


                   Because  the  exclusionary  rule  does  not  apply  to  Garibay's  case,  his  


argument that he was unlawfully arrested fails.  The DMV had the authority to revoke  

his license.  



                   We AFFIRM the hearing officer's decision upholding the revocation of  

Garibay's license.  

         32        (...continued)  


1130 (Alaska 2007) (Eastaugh, J., dissenting) ("[A]n unlawful stop may 'invalidate' an  

ensuing  arrest  .  .  .  through  the  exclusion  of  evidence  garnered  from  the  stop."  

(alterations in original)).  

                                                          -11-                                                       6970  

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