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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jason Barnebey v. State of Alaska, Department of Administration, Division of Motor Vehicles (4/10/2020) sp-7438
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JASON BARNEBEY, )
) Supreme Court No. S-16844
Appellant, )
) Superior Court No. 4FA-15-01406 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF ) No. 7438 - April 10, 2020
ADMINISTRATION, DIVISION OF )
MOTOR VEHICLES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael P. McConahy,
Judge.
Appearances: Robert John, Law Office of Robert John,
Fairbanks, for Appellant. Shelley J. White, Assistant
Attorney General, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A man was arrested for driving under the influence of alcohol. At the
police station he was administered a breath test by a DataMaster testing instrument,
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which showed a result of .081 percent alcohol, above the .08 legal limit. The man
elected to obtain an independent chemical test, which showed a result of .073. Following
an administrative hearing, a hearing officer relied on the DataMaster breath-test result
to sustain the Department of Motor Vehicles's revocation of the man's license pursuant
to AS 28.15.165(c).
The man appealed to the superior court, arguing, as he had at the
administrative hearing, that it was error not to consider the DataMaster's inherent margin
of error in determining whether his test result was over the legal limit. The superior
court affirmed the hearing officer's decision and awarded attorney's fees to the State; the
man filed this appeal.
Weconcludethat thehearingofficer properly interpreted thegoverning law
and did not violate due process in her consideration of the DataMaster's margin of error.
We affirm the decision revoking the man's license. However, we conclude that it was
error for the superior court to award attorney's fees to the State without considering
whether the man was entitled to protection as a constitutional litigant under
AS 09.60.010(c)(2). We therefore vacate the attorney's fees award and remand the case
for further consideration of only that issue.
II. FACTS AND PROCEEDINGS
A. Facts
An Alaska state trooper stopped Jason Barnebey just after midnight for
failing to use a turn signal and driving on the double yellow line. According to the
trooper, Barnebey had "bloodshot and watery eyes" and his breath had "a light odor of
an alcoholic beverage." Barnebey admitted to the trooper that he had consumed a few
drinks.
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The trooper administered three standardized field sobriety tests. Barnebey
passed the walk-and-turn test and the one-leg-stand test, but he failed the horizontal gaze
nystagmus (HGN) test with the minimum number of "clues" necessary to be considered
a failure.
The trooper arrested Barnebey for driving under the influence (DUI) and
gave him a preliminary breath test, which produced a reading of .081 percent breath
alcohol concentration (BrAC). At the police station, at about 1:00 a.m., Barnebey gave
a breath sample for testing on the DataMaster machine. This also produced a reading of
.081 BrAC, just over the legal limit of .08 set by AS 28.35.030(a)(2).
1 He had
Barnebey requested an independent chemical test, as was his right.
blood drawn at Fairbanks Memorial Hospital at 1:35 a.m., and laboratory testing of the
sample showed a blood-alcohol level of .073 g/100mL. Because of the DataMaster test
result, however, the trooper informed Barnebey that his driver's license would be
revoked unless he requested an administrative hearing.
B. Proceedings
AhearingofficerwiththeDepartment ofAdministration, Division ofMotor
Vehicles (DMV), presided over a two-day administrative hearing. Barnebey raised two
defenses to revocation of his driver's license: (1) the trooper lacked probable cause for
the arrest, and (2) the breath-test result of .081 was within the DataMaster's inherent
margin of error. The hearing officer rejected these defenses. She found that "the
operator who administered [the] breath test was certified at the time and complied with
1 See AS 28.35.033(e) ("The person tested may have a physician, or a
qualified technician, chemist, registered or advanced practice registered nurse, or other
qualified person of the person's own choosing administer a chemical test [of the person's
breath or blood] in addition to the test administered at the direction of a law enforcement
officer.").
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the regulations set forth for breath analysis," and that "[t]he instrument did a self-check
before and after [Barnebey's] subject sample." She noted that the DataMaster was
"within its working tolerances." Finally, she found that there was no "reason or case
law" requiring her to base her decision on the result of Barnebey's independent chemical
test rather than the DataMaster test result, and that the independent chemical test actually
corroborated the DataMaster result because it showed "an elimination due to the
consumption earlier in the evening." The hearing officer affirmed the DMV's decision
to revoke Barnebey's license, and, because of his prior alcohol-related driving offenses,
the revocation was for three years.
Barnebey appealed the hearing officer's decision to the superior court and
moved to stay the license revocation pending the appeal's outcome. The superior court
granted the stay. Barnebey raised two points on his superior court appeal: (1) that the
hearing officer erred by failing to conclude that Barnebey's test result was within the
2 and (2) that
DataMaster's inherent margin of error and therefore below the legal limit,
the hearing officer erred by assuming that the lower blood-alcohol level indicated by his
independent chemical test was simply a reflection of the passage of time since the
DataMaster test. The superior court upheld the hearing officer's decision, concluding
that the DataMaster's margin of error was irrelevant to the offense and that substantial
evidence, including the breath-test result and Barnebey's admission that he had been
drinking, supported the hearing officer's decision.
The DMV moved for attorney's fees. Barnebey opposed the motion,
arguing that he was a constitutional claimant for purposes of the statutory protection
2 Specifically, Barnebey argued that the DataMaster's margin of error is five
percent and "thus, in order for a person's DataMaster result to be over the legal limit, the
result must be .085."
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3
against adverse awards of attorney's fees. But the superior court awarded DMV
$4,658.33 in attorney's fees - twenty percent of what DMV had incurred on appeal.
Barnebey appeals.
III. STANDARD OF REVIEW
When the decision of a hearing officer in a driver's license revocation
hearing is appealed to us from a decision of the superior court sitting as an intermediate
4
court of appeal, we independently review the hearing officer's decision.
We review it
"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
5 6
in the record.' " We apply our independent judgment to questions of law, including
"questions involving the constitutionality of a statute[,] 'and will adopt the rule of law
7
which is most persuasive in light of precedent, reason, and policy.' " One such question
of law reviewed de novo is "whether the superior court correctly applied the law
3 See AS 09.60.010(c)(2) (prohibiting attorney's fees awards against
non-prevailing parties bringing non-frivolous constitutional claims and lacking
"sufficient economic incentive to bring the action or appeal regardless of the
constitutional claims involved").
4 Morris v. State, Dep't of Admin., Div. of Motor Vehicles, 186 P.3d 575, 577
(Alaska 2008).
5 Id. (quoting Saltz v. State, Dep't of Pub. Safety, 942 P.2d 1151, 1152 & n.2
(Alaska 1997) (holding that supreme court and superior courts apply same standard of
review)).
6 See State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014).
7 Valentine v. State, 215 P.3d 319, 322 (Alaska 2009) (quoting State v.
Murtagh, 169 P.3d 602, 606 (Alaska 2007)).
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8
allowing or prohibiting an [attorney's fees] award." We review "the hearing officer's
factual findings under the substantial evidence test, 'determining "whether the findings
are supported by such evidence as a reasonable mind might accept as adequate to support
a conclusion." ' " 9
IV. DISCUSSION
A. The Hearing Officer Did Not Violate Barnebey's Due Process Rights
By Declining To Find That A DataMaster Test Result Within The
Machine's Inherent Margin Of Error Was Below The Legal Limit.
"A driver's license is an important property interest, and the driver has a
constitutional right to a meaningful hearing before the [S]tate can suspend [the]
10
license." Barnebey argues that the DMV violated his due process right to a meaningful
hearing when it failed to conclude that a DataMaster result within the machine's inherent
margin of error "brings the test result below the legal limit," requiring dismissal of the
11
revocation proceeding.
Administrative license revocations resulting from sobriety tests are
governed by AS 28.15.165. The statute's language has been amended several times, but
the three essential prerequisites for revocation remain unchanged: (1) probable cause for
8 Titus v. State, Dep't of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1277
(Alaska 2013).
9 Morris, 186 P.3d at 577 (quoting Saltz, 126 P.3d at 136).
10 Champion v. Dep't of Pub. Safety, 721 P.2d 131, 133 (Alaska 1986).
11 Barnebey also appears to frame his argument as a challenge to the hearing
officer's exclusion of margin-of-error evidence. But he does not identify any evidence
that was excluded, and the hearing record shows that the hearing officer accepted most
evidence that was offered, including portions of a transcript from another case that
Barnebey offered as support for his margin-of-error argument.
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the arresting officer to believe that the driver was driving while under the influence; 12
(2) a chemical test that "produced a result described in AS 28.35.030(a)(2) or the person
13 and (3) proper notice of the DMV's intent to
refused to submit to a chemical test";
14 The chemical test "result" incorporated by reference is "0.08 percent or more
revoke.
by weight of alcohol in the person's blood," "80 milligrams or more of alcohol per 100
milliliters of blood," or "0.08 grams or more of alcohol per 210 liters of the person's
breath."15 And since 1996, AS 28.90.020 clarifies that "the result described by statute
is not affected by the [testing] instrument's working tolerance."16
A person may request administrative review of a license revocation as
outlined in AS 28.15.166. However, the review hearing is "limited to the issues of
whether the law enforcement officer had probable cause" and whether theperson refused
to submit to a chemical test or whether an administered chemical test produced a result
described in AS 28.35.030(a)(2).17 If these issues "are determined in the affirmative by
a preponderance of the evidence, the hearing officer shall sustain the action of" the
18
DMV.
12 AS 28.15.165(c)(3).
13 AS 28.15.165(c) (emphasis added).
14 AS 28.15.165(a).
15 AS 28.35.030(a)(2) (defining "crime of driving while under the influence
of an alcoholic beverage").
16 Ch. 143, § 17, SLA 1996.
17 AS 28.15.166(g).
18 AS 28.15.166(j).
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Wehaveheld that certain testing-relatedevidencemaybeexcluded without
running afoul of the due process guarantee when, given the elements of the alleged
19 In order to explain why that
offense, the evidence is not relevant or exculpatory.
holding directs our decision here, we first review past Alaska cases addressing
breath-test evidence. We note that although administrative license revocations are
governed by AS 28.15.165(c), our analysis of this issue must also examine the case law
addressing AS 28.35.030(a)(2) - the statute that criminalizes driving under the
influence "as determined by a chemical test" - because revocation under AS 28.15.165
depends in part on "a result described in AS 28.35.030(a)(2)."20 Understanding
subsection .030(a)(2) and how it has been interpreted in both license revocations and
criminal prosecutions is thus important to our analysis.
1. Alaska precedents permit the exclusion of margin-of-error
evidence under AS 28.35.030(a)(2).
In Lauderdale v. State, decided in 1976, we approved a district court's
order suppressing the results of a breathalyzer test in a DUI prosecution after the State
was unable to produce the ampoule of the defendant's collected breath for independent
testing.21
We reasoned that the defendant would be denied a fair trial if he was not given
the opportunity to "test the reliability or credibility of the results of the breathalyzer
test . . . by a scientific analysis of some of the [collected breath samples] which . . . may
22
well yield scientifically reliable data bearing on his innocence or guilt."
19 See Valentine v. State , 215 P.3d 319, 325-27 (Alaska 2009).
20
AS 28.15.165(c).
21
548 P.2d 376, 378, 384 (Alaska 1976).
22
Id. at 381.
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Ten years later, in Champion v. Department of Public Safety , we extended
this rationale to the State's failure to preserve breath samples in license revocation
23 We reasoned in Champion that the
proceedings, which are civil rather than criminal.
driver's license is "an important property interest" and the driver is therefore entitled to
"a meaningful hearing" before it can be taken away; that "the breath test is of central
importance in the administrative license revocation proceeding"; and that "[t]he ability
of the defendant to evaluate these tests is critical to [the defendant's] ability to present
[a] case."24 We concluded that "[t]o deny a driver a reasonable opportunity to test the
reliability and credibility of the breath test is to deny [the driver] a meaningful and
fundamentally fair hearing" in the administrative process.25 A few years later we
concluded that this due process concern could be satisfied if a defendant was given
notice of the statutory right to an independent test.26
We addressed margin-of-error evidence in Barcott v. State, Department of
27 The driver in Barcott was given a
Public Safety, Division of Motor Vehicles.
preliminary breath test that produced a reading of .102 percent (when the legal limit
was .10).28 At the police station the driver was given a breath test on the Intoximeter
23 721 P.2d 131, 132-33 (Alaska 1986).
24 Id. at 133.
25 Id.
26 Gundersen v. Municipalityof Anchorage, 792P.2d673,677(Alaska1990).
27 741 P.2d 226 (Alaska 1987).
28 Id. at 227, 228 n.1.
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29
3000 machine, which produced a reading of .10 percent. The police officer also
conducted two control tests on the machine; one produced a reading .001 percent higher
than the testing sample's known alcohol level and the second produced a reading .006
30 We reversed the hearing officer's revocation of the defendant's driver's
percent lower.
license.31 Citing Champion, we held that the case's reasoning "leads inescapably to the
conclusion that due process requires consideration of the margin of error inherent in the
breath testing procedure used in this case."32 We rejected the State's argument "that the
legislature presumably was aware of the margin of error in the test but nonetheless
created a presumption of intoxication based on a particular test result."33 We observed
that the legislature had not specifically approved the Intoximeter 3000 test but rather had
simply delegated the breathalyzer-certification process to the Department of Health and
34 And we reiterated that "Champion mandates that the defendant in a
Social Services.
license revocation proceeding has the constitutionally guaranteed right to challenge the
accuracy of the breath test independently."35
We addressed the issue again six years later in Haynes v. State, Department
29 Id. at 227.
30 Id.
31
Id. at 230.
32 Id. at 228.
33
Id. at 230.
34 Id.
35 Id.
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36
of Public Safety . In that case, unlike Barcott, the hearing officer expressly considered
evidence of the Intoximeter 3000's margin of error; however, the hearing officer also
relied on police testimony about the defendant's "appearance and behavior" to find that
the defendant's breath-alcohol content must have been above the statutory limit despite
37 On appeal we held this was error; we held that the test's
inconclusive test results.
"inherent margin of error" must invariably be applied in the defendant's favor absent
express legislative intent to the contrary, and therefore a breath-test result that could fall
below the statutory limit when the inherent margin of error is applied "cannot serve as
the basis for a license revocation" regardless of "[e]xtrinsic evidence of intoxication."38
We highlighted, however, the two possible interpretations of DUI statutes: they may
"create an offense upon a test reading in excess of their statutory limit or upon an actual
39 We reiterated our conclusion in Barcott that the
level of alcohol in excess of the limit."
legislature apparently intended the latter.40 But we emphasized that the legislature could
have taken the other tack:
The legislature has the power to require the revocation of a
driver's license on the basis of a particular test result or
reading, despite its inherent margin of error, when the
legislature expressly considers that margin and deems it
sufficiently negligible such that it may be disregarded. In
such circumstances, the test result is considered tolerably
inaccurate, and, therefore, the Department may revoke a
36 865 P.2d 753 (Alaska 1993).
37 Id. at 754.
38 Id. at 756.
39 Id. at 755 (emphasis in original).
40 Id. at 755-56.
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license on the basis of the test result without regard to the
test's margin of error. [41]
In 1996, in the wake of Haynes, the Alaska legislature enacted
AS 28.40.060. The statute, since renumbered as AS 28.90.020, provides that "if an
offense described under [Title 28] requires that a chemical test of a person's breath
produce a particular result, and the chemical test is administered by a properly calibrated
instrument approved by the Department of Public Safety, the result described by statute
is not affected by the instrument's working tolerance."42 The court of appeals
acknowledged the effect of this statutory change in Mangiapane v. Municipality of
43 The court noted that the legislature had decided to reject our interpretation
Anchorage .
of the DUI offense in Haynes - as based on the actual measure of alcohol in the
person's blood or breath - in favor of criminal liability based on the test result: "The
fact that the driver's true blood-alcohol or breath-alcohol level may be slightly lower
(due to the Intoximeter's acknowledged margin of error) is no longer relevant to the
driver's guilt under AS 28.35.030(a)(2)."44
A year later the court of appeals rejected a defendant's argument that
AS 28.40.060 violated his due process rights because it "allows the Department of Public
Safety to approve any instrument, even one which is very inaccurate, to establish his
level of intoxication."45 The court of appeals concluded that the legislature must have
been well aware of the State's long-time use of the Intoximeter 3000, with a known
41 Id. at 755 (emphasis in original).
42 AS 28.90.020.
43 974 P.2d 427 (Alaska App. 1999).
44 Id. at 430.
45 Bushnell v. State , 5 P.3d 889, 890 (Alaska App. 2000).
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margin of error of .01 percent, and must have "implicitly decided that a .01 percent
working tolerance was 'tolerably inaccurate.' " 46
In Conrad v. State the court of appeals addressed "[w]hether the State must
prove that a motorist's blood alcohol level was above the legal limit at the time of the
testing or, instead, at the time the motorist operated or controlled the vehicle."47 The
court refined its decision in Mangiapane to make clear "that a defendant's guilt under
AS 28.35.030(a)(2) hinges on the defendant's blood alcohol content at the time the
defendant operated or controlled a motor vehicle"; the result of a chemical test
"administered to the defendant within the statutorily prescribed four hours . . . will create
a presumption that the defendant's blood alcohol level was at least as high at the time the
defendant operated or controlled thevehicle,"butthedefendant "may introduceevidence
48
to rebut this presumption."
In response to the court of appeals' Conrad opinion, the legislature
49 First, the legislature amended subsection (a)(2) to provide that
amended AS 28.35.030.
the driver's guilt could be determined solely by the result of a chemical test properly
administered within four hours of driving regardless of the blood-alcohol level at the
time of driving.50 Second, the legislature added subsection (s), which precluded
46 Id. at 892.
47 54 P.3d 313, 314 (Alaska App. 2002), superseded by statute, ch. 124,
§§ 25, 27, SLA 2004, as recognized in Valentine v. State, 215 P.3d 319, 322-24 (Alaska
2009).
48 Id. at 315.
49 See Valentine, 215 P.3d at 322-24 (describing 2004 amendments).
50 Ch. 124, § 25, SLA 2004 (inserting the language "or (2) and if" to introduce
AS 28.35.030(a)(2), allowing chemical test result within four hours of driving to stand
(continued...)
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defendants from introducing a delayed-absorption defense by claiming that their
chemical test results did not accurately measure their blood-alcohol level at the time of
driving.51
52 A defendant was
We addressed these amendments in Valentine v. State.
charged with DUI under both AS 28.35.030(a)(1) and (a)(2).53 We called subsection
(a)(1) the "under-the-influence" theory; this "makes it a crime to drive while under the
influence of alcohol, regardless of blood alcohol."54 Subsection (a)(2) we called the
"blood-alcohol-level" theory; this provides that "a person commits a DUI offense if the
person takes a chemical test within four hours of driving that detects a blood alcohol
level of at least 0.08 percent, regardless of the person's blood alcohol at the time of
driving."55 The defendant in Valentine argued that the amended statute's exclusion of
delayed-absorption evidence was unconstitutional, but the trial court rejected his
argument, and the jury convicted him "using a general verdict form that did not specify
56 On
whether he was convicted under subsection (a)(1), subsection (a)(2), or both."
50 (...continued)
alone in determining defendant's guilt); Valentine, 215 P.3d at 322-24.
51 Ch. 124, § 27, SLA 2004 ("[T]he consumption of alcohol before operating
or driving may not be used as a defense that the chemical test did not measure the blood
alcohol at the time of the operating or driving."); Valentine, 215 P.3d at 324-25.
52 215 P.3d at 322-24.
53 Id. at 321.
54 Id. at 320.
55 Id.
56 Id. at 320-21.
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57
appeal we reversed the conviction and remanded for a new trial. We held that although
the subsection (a)(2) offense - the "blood-alcohol-level" theory - now depended
solely on whether "the driver's chemical test result is 0.08 percent or higher within four
hours of driving," the subsection (a)(1) offense - the "under-the-influence" theory -
58
continued to depend on whether "the driver was impaired at the time of driving."
Therefore, "[w]hether a chemical test result accurately indicates a driver's blood alcohol
content at the time of driving continues to be relevant to prosecutions under subsection
(a)(1) if they rely on chemical test results," and it would violate due process to deny the
defendants the opportunity to challenge those results.59
2. AS 28.35.165(c) does not violate due process by allowing a
hearing officer to rely solely on the result of a properly
administered breath test.
Barnebey argues that under this line of case law, "fundamental fairness
requires that [defendants] be allowed to challenge the reliability and credibility of the
breath test during . . . license revocation proceeding[s]," and that Valentine, our most
recent case addressing this issue, requires recognition of the "well-established scientific
fact" that the DataMaster has an inherent margin of error. But Barnebey oversimplifies
our decision in Valentine, which maintained the important distinction between offenses
dependent on actual blood-alcohol level and those dependent on a particular test result.
Indeed, Valentine's discussion of due process controls our decision of
Barnebey's claim here. In Valentine we followed the issue-framing used by Justice
Ginsburg in her concurrence in Montana v. Egelhoff, where she explained:
57 Id. at 327.
58 Id. at 326.
59 Id. at 326-27.
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If [the statute] is simply a rule designed to keep out "relevant,
exculpatory evidence," . . . [the statute] offends due process.
If it is, instead, a redefinition of the mental-state element of
the offense, on the other hand, . . . [the] due process concern
"would not be at issue, for a state legislature certainly has the
authority to identify the elements of the offenses it wishes to
punish," and to exclude evidence irrelevant to the crime it has
defined.[60]
Applying this analysis to the legislature's 2004 amendments, we held in Valentine that
"[t]he Alaska Legislature properly used its broad discretion to redefine the elements" of
subsection (a)(2), basing criminal liability solely on the result of a properly administered
chemical test of .08 or higher within four hours of driving.61 Because delayed-absorption
evidencewas irrelevant tothecrime as legislatively defined, excluding suchevidencedid
not violate due process.62
In this appeal we look to AS 28.15.165(c), the administrative revocation
statute, for the definition of the offense at issue. DMV's authority to revoke a license has
always been statutorily phrased as dependent on the "result" of a chemical test;
AS 28.15.165(c) differs from the DUI criminal statute in that it does not include an
alternative "under the influence" provision like AS 28.35.030(a)(1). A likely rationale
for the difference appears in legislative history. A police officer acting under the
authority of AS 28.15.165(b) may confiscate a driver's license, and, according to the
statutory language, a test result is sufficient to justify this action. At a hearing on the bill
creating the administrative revocation remedy, the General Counsel for the Alaska Court
60 Id. at 326 (quoting Montana v. Egelhoff, 518 U.S. 37, 56-57 (1996)
(Ginsburg, J., concurring)).
61 Id.
62 Id.
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System testified that having preliminary hearings handled by the Department of Public
63
Safety rather than the Court System would decrease costs and delays;
at the time, the
64 An invited expert
Court Systemwas experiencing long delays in calendaring hearings.
testified that increasing the severity of penalties would have little deterrent effect without
an increase in the certainty of punishment.65 A municipal prosecutor testified that
suspending or revoking drivers' licenses was a more effective deterrent to drunk driving
than jail time.66 A university sociologist testified, "Deterrence works when the
punishment is[] certain, swift, and severe. Administrative revocations generally meet
67 The legislature could reasonably have been reacting to this testimony
[these] criteria."
when it decided to base revocation on something that an officer could determine
relatively quickly - a breath-test result - and not actual blood-alcohol content, which
could not be determined definitively without weighing the accuracy and reliability of the
devices used to measure it. Administrative hearings, if requested, are similarly
63 Minutes, Sen. Judiciary Comm. Hearing on H.B. 6, 13th. Leg., 1st Sess.,
Tape 1, Side A, No. 000 (May 27, 1983) (testimony of Karla Forsythe, Alaska Court
System General Counsel).
64 Minutes, Sen. State Affairs Standing Comm. Hearing on H.B. 6, 13th Leg.,
1st Sess., Tape 2, Side 1, No. 202 (May 10, 1983) (testimony of Karla Forsythe, Alaska
Court System General Counsel).
65 Minutes, Sen. State Affairs Standing Comm. Hearing on H.B. 6, 13th Leg.,
1st Sess., Tape 1, Side 1, No. 173 (Apr. 9, 1983) (testimony of Dennis Kelso, Altam
Associates).
66 Id. at Tape 3, Side 1, No. 286 (testimony of Allen Bailey, Anchorage
Municipal Prosecutor).
67 Minutes, Sen. State Affairs Standing Comm. Hearing on S.B. 61, 13th.
Leg., 1st Sess., Tape 1, Side 2, No. 406 (Apr. 12, 1983) (testimony of Dr. Larry Ross,
SUNY Buffalo).
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----------------------- Page 18-----------------------
streamlined by the narrow focus on the test result and whether the law enforcement
officer had probable cause. 68
The legislature's enactment of AS 28.90.020 (originally numbered
AS 28.40.060) clarified that a testing machine's "working tolerance" was not to be
considered as affecting the result under AS 28.35.030(a)(2). Further, the evolution of
Alaska's DUI statutes and judicial interpretations described above -ultimately defining
the offense under AS 28.35.030(a)(2) as dependent solely on the result of a properly
administered chemical test69 -supports our conclusion here. And "while AS 28.35.033
creates a presumption of the chemical test's validity, 'it does not make those [test] results
unassailable.' "70 Other evidence may call "into question the reliability or validity of [a]
chemical breath test result."71 However, because margin-of-error evidence is irrelevant
to the statutory basis for revocation, excluding that evidence in revocation cases - or,
as here, declining to find that a result within the margin of error is exculpatory - does
not violate due process rights.
68 See AS 28.15.166(g).
69 Haynes v. State, Dep't of Pub. Safety , 865 P.2d 753, 755-56 (Alaska 1993)
(noting that the legislature had the power to expressly consider margin-of-error evidence
and "deem[] it sufficiently negligible such that it may be disregarded"); Valentine v.
State, 215 P.3d 319, 326 (Alaska 2009) (holding that "[t]he legislative amendment to
subsection (a)(2) . . . . rendered a defendant's blood alcohol at the time of driving
irrelevant and thus inadmissible"); Bushnell v. State, 5 P.3d 889, 891-92 (Alaska App.
2000) (holding that the legislature "implicitly found that a working tolerance of .01
percent of a properly calibrated instrument was 'tolerably inaccurate' ").
70 Morris v. State, Dep't of Admin., Div. of Motor Vehicles, 186 P.3d 575, 579
(Alaska 2008) (alteration in original) (quoting Keel v. State, 609 P.2d 555, 557 (Alaska
1980)).
71 Id.
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Barnebey also argues that the hearing officer's decision was not supported
by substantial evidence given both the breath-test result within the DataMaster's margin
of error and the independent chemical test result of .073 g/100mL. As explained above,
however, AS 28.15.165(c) depends only on the result of a properly administered test
under AS 28.35.030(a)(2), and margin-of-error evidence is not relevant to this
determination. Alaska Statute 28.15.166(g)(2) directs the hearing officer to determine
whether the chemical test produced a particular result, and the hearing officer did so in
Barnebey's case. As for the alleged conflict between the breath-test result and the
independent chemical test result, the weight given to each test "is a factual matter
72 The hearing officer explained why she did not find
properly left to the hearing officer."
the test results to be conflicting.73 Her decision was supported by substantial evidence.
3. The revocation statute does not provide unfair notice in
violation of due process.
"[D]ueprocess requires that any actioninvolving deprivation oflife, liberty
or property by adjudication must be preceded by notice and opportunity for hearing
appropriate to the nature of the case."74
Barnebey argues that it is "unfair notice" to
expect a person "to know what an inherently-inaccurate machine will say that a person's
blood-alcohol level is." In support of his cursory argument he cites only Valentine, and
72 Id. at 581.
73
The hearing officer found that the independent test result was in fact
consistent with the DataMaster result, showing that, in between the tests, "there was an
elimination due to the [admitted] consumption earlier in the evening." See id. at 579-80
(describing alcohol elimination process as explanation for inconsistency between test
results taken approximately 30 minutes apart).
74 Philip J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
264 P.3d 842, 846 (Alaska 2011) (alteration in original) (quoting In re Estate of Fields,
219 P.3d 995, 1009 (Alaska 2009)).
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we therefore interpret his argument as similar to the one made unsuccessfully in that
case: not "that the language of the statute is unconstitutionally imprecise," but rather
"that the statute violates due process because it is too difficult for a motorist who chooses
to drink alcohol before driving to gauge if . . . his conduct will violate the statute." 75
Alaska Statute 28.15.165(c) clearly gives notice that the DMV "shall
revoke [a] person's license" if a chemical test produces "a result described in
AS 28.35.030(a)(2)." (Emphasis added.) The referenced statute, in turn, clearly gives
notice of the result that will lead to revocation: "0.08 percent or more by weight of
alcohol in the person's blood or . . . 0.08 grams or more of alcohol per 210 liters of the
person's breath." Finally, AS 28.90.020 clearly gives notice that "the result described
by statute is not affected by the instrument's working tolerance." Because the statutory
standards are clear, the question is whether the public can reasonably be expected to
conform their conduct to those standards.76
In Valentine, the court of appeals rejected the argument that
AS 28.35.030(a)(2) violated due process because it would be difficult for a driver to
predict when - within the four hours allowed for the chemical test - he might reach
the proscribed limit of 0.08 blood-alcohol content.77 The court of appeals cited cases
from other jurisdictions78 and quoted one opinion holding that "[w]here a statute gives
fair notice of what is to be avoided or punished, it should not be declared void for
75 155 P.3d 331, 340 (Alaska App. 2007), rev'd on other grounds , 215 P.3d
319, 327 (Alaska 2009).
76 See Gottschalk v. State, 575 P.2d 289, 290 (Alaska 1978) ("Criminal laws
must give the ordinary citizen fair notice of what is and what is not prohibited. People
should not be made to guess whether a certain course of conduct is criminal.").
77 155 P.3d at 339-41.
78 Id. at 340 n.33.
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vagueness simply because it may be difficult for the public to determine how far they can
go before they are in actual violation." 79
Given Barnebey's failure to develop this due
process argument, we see no reason to depart from the court of appeals' reasoning in
Valentine. When a statute gives fair notice of the proscribed limits, "a person who drinks
a substantial amount of alcohol . . . is put on notice that he chooses to drive at his own
80
peril."
B. It Was Error To Award Attorney's Fees To The DMV Without
Consideration Of AS 09.60.010(c)(2).
Barnebey contends that the superior court erred when it awarded attorney's
fees to the DMV as the prevailing party on appeal without "consider[ing] and
address[ing] Barnebey's reliance upon AS 09.60.010(c) in the face of his certainly non-
frivolous constitutional claims." Alaska Statute 09.60.010(c) creates a "constitutional
litigant" exception to the usual rules governing awards of attorney's fees and costs to the
prevailing party.81
In an appeal "concerning the establishment, protection, or
enforcement of a right under the United States Constitution or the Constitution of the
State of Alaska," a court may not order the constitutional claimant to pay the opposing
party's attorney's fees if the claimant "did not prevail in asserting the right, the . . .
appeal asserting the right was not frivolous, and the claimant did not have sufficient
economic incentive to bring the . . . appeal regardless of the constitutional claims
79 Id. at 340 (quoting United States v. Skinner, 973 F. Supp. 975, 980 (W.D.
Wash. 1997) (quoting Fuenning v. Superior Court ex rel. Maricopa County, 680 P.2d
121, 129 (Ariz. 1983))).
80 Id. (quoting Bohannon v. State, 497 S.E.2d 552, 556 (Ga. 1998)).
81 See Manning v. State, Dep't of Fish & Game, 420 P.3d 1270, 1283 (Alaska
2018).
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involved."82
It is undisputed that Barnebey asserted a constitutional right to present
margin-of-error evidence and that he did not prevail on his claim. The DMV also
concedes that Barnebey's appeal was not frivolous. At issue is only the third element of
the "constitutional litigant" exception: whether Barnebey had "sufficient economic
incentive" to bring the appeal regardless of the constitutional basis of his claims.
"A litigant has sufficient economic incentive to bring a claim when it is
brought primarily to advance the litigant's direct economic interest, regardless of the
83 We determine the claim's primary purpose by looking to the facts
nature of the claim."
of the case and by examining "the nature of the claim and relief sought and the direct
economic interest at stake."84 The issue here is whether Barnebey's interest in retaining
85 constitutes sufficient
his driver's license, undoubtedly an "important property interest,"
economic incentive to bring a claim under AS 09.60.010(c)(2).
The DMV argues that Barnebey was primarily motivated to appeal out of
"concern for his own economic livelihood." Barnebey worked in land surveying; his job
required that he drive to various work locations throughout the day. As Barnebey
explained in an affidavit, "as a result of the license revocation . . . , my ability to obtain
employment has been drastically curtailed and I am accordingly suffering economic
hardship." Another land surveyor and co-worker submitted an affidavit in support of
82 AS 09.60.010(c)(2).
83 Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 281-82
(Alaska 2015).
84 Id. at 282.
85 Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d
1130, 1135 (Alaska 2001) (quoting Champion v. Dep't of Pub. Safety, 721 P.2d 131, 133
(Alaska 1986)).
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Barnebey's need for a driver's license, explaining that "[a]ny limitation of [Barnebey's]
driving privileges . . . severely lessens his ability to obtain employment" in the field and
that even if he finds a surveying job, his "earning capacity would be restricted" if he did
not have a license.
Barnebey argues, however, that he is "seeking only to retain his basic
driver's license," not a "commercial driver's license." He contends that "the importance
of a driver's license extends far beyond mere economics so that its revocation has
profound impacts on the family, medical, social, and political aspects of life as a human
being," and he urges us to "hold categorically that persons raising constitutional claims
in the context of exercising their rights to drive . . . are entitled to the benefits and
protections of AS 09.60.010, just as the Court has essentially held . . . when subsistence
rights are at issue."
We held in Alaska Conservation Foundation that "protecting subsistence
86 As Barnebey points out,
uses is not sufficient economic incentive to bring a lawsuit."
for those living on the road system a driver's license has many non-commercial uses; for
many people, access to the grocery store, the doctor's office, church, and political events
may depend on their ability to drive. Driving may be necessary for engaging in the
social life of the community. It may be difficult in some cases to differentiate between
thenon-economic benefits citizens derivefromtheirdrivers' licenses and thesubsistence
uses that we have found are not enough to satisfy the "sufficient economic incentive"
element of the constitutional claimant statute.
The superior court did not address Barnebey's AS 09.60.010(c) argument
in its order awarding fees. In Titus v. State, Department of Administration, Division of
Motor Vehicles, Titus, like Barnebey, relied on AS 09.60.010(c)(2) to oppose an award
86
350 P.3d at 286.
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87
of attorney's fees. The superior court in that case, as here, did not address the
88
constitutional-claimant argument in its award of fees.
We held in Titus that "[i]t was
error not to consider Titus's AS 09.60.010 arguments" and vacated the attorney's fee
89 We do the
award, remanding the issue to the superior court for further consideration.
same here. On remand the superior court should specifically consider whether Barnebey
had sufficient economic incentive - beyond the usual non-commercial automobile use
endemic to a road-system society - to bring his appeal.
V. CONCLUSION
The hearing officer's decision to revoke Barnebey's driver's license is
AFFIRMED. The superior court's award of attorney's fees is VACATED, and the case
is REMANDED to the superior court for further consideration of the attorney's fees
issue in accordance with this opinion.
87 305 P.3d 1271, 1276 (Alaska 2013).
88 Id. at 1282.
89 Id. at 1283.
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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