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Borrego v. Dept. of Public Safety (7/26/91), 815 P 2d 360
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
HAROLD A. BORREGO, )
) Supreme Court Nos. S-3837/S-3962
) Trial Court No.
) 3AN-88-11818 Civil
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF PUBLIC SAFETY, )
Appellee. ) [No. 3722 - July 26, 1991]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Ralph Stemp, Judge pro tem, and
Rene Gonzalez, Judge.
Appearances: Phillip P. Weidner, Keenan
Powell, Weidner & Associates, Anchorage, for
Appellant. James Forbes, Assistant Attorney
General, Anchorage, Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Harold Borrego seeks to have the revocation of his
driver's license reversed. Borrego's license was revoked for one
year upon an administrative determination that he had been
driving while intoxicated (DWI). At about the same time,
however, a jury acquitted him on a parallel criminal DWI charge.
Following administrative and judicial review, the administrative
revocation was affirmed. Borrego then appealed to this court.
II. FACTS AND PROCEEDINGS
A. The Arrest
On August 7, 1988, Harold Borrego was arrested in
Bethel for driving while intoxicated. The arrest, made inside
the Brass Buckle Roadhouse, was based on information given to the
police by a Bethel resident, Leonard Patton, and on their own
observations of Borrego.
Patton initially told the police that he had seen
Borrego's truck drive up to the Brass Buckle, Borrego get out,
and make his way into the building as if he were drunk. A report
later completed by Patton indicated that he did not actually see
Borrego leave his vehicle.1 Based on Patton's initial report to
the police, Officers Abrant and Miller went to the Brass Buckle.
When they went inside, they saw evidence that Borrego was drunk:
he tried to walk up a couple of steps and nearly fell, he walked
unsteadily, and he struggled to stay on a bar stool. When they
approached him, they found that his speech was slurred, he had
alcohol on his breath, and he had bloodshot eyes. One of the
officers asked him if he had driven to the disco. Borrego said
that he had.2 Borrego also stated that he had not had anything
alcoholic to drink since arriving at the Brass Buckle. When
Borrego refused to take a field sobriety test, the officers
arrested him for driving while intoxicated.
B. The Administrative Proceedings
After the arrest, Borrego's license was immediately
revoked by the Department of Public Safety. Borrego appealed the
revocation on August 8, as permitted by AS 28.15.166. It took
three hearings before the revocation was finally affirmed in the
administrative review process.
The initial hearing was held before a hearing officer
on September 21. At that hearing, Mr. Angstman, Borrego's
attorney, requested a continuance on the issue of whether the
officers had reasonable grounds to believe that Borrego had been
operating a vehicle while intoxicated. His reason was that
Borrego had filed a motion to suppress all evidence in the
criminal DWI case, based on the argument that the officers did
not have reasonable grounds to believe that Borrego had driven
while intoxicated. The hearing officer granted the continuance.
At the second hearing, held on October 27, Angstman
reported to the hearing officer that Borrego's motion to suppress
had been denied and that Borrego had been acquitted by the jury.
Evidence was then taken on the issues of the reasonableness of
arrest and whether or not Borrego had been driving while under
the influence.3 When the hearing officer proposed to read into
the record the sworn report of Officer Brunger, which contained
the unsworn reports of the arresting officers, Angstman objected.
His grounds were basically: 1) only Officer Brunger's report was
sworn, 2) Brunger did not have firsthand information of the
arrest, and 3) neither of the arresting officers was available at
the hearing to testify. After hearing testimony from Brunger,4
the hearing officer agreed and decided to continue the hearing
based on AS 28.15.166(h)5 to allow the arresting officers to
testify personally. Angstman did not object to this ruling.
At the last hearing, held on November 3, both arresting
officers testified telephonically. They described the initial
report from Patton, their investigation, and finally their arrest
of Borrego. After a final statement by Angstman, the hearing
officer affirmed the revocation of Borrego's driver's license.
C. The Appellate Proceedings Below
Borrego filed two separate appeals at the same time:
one in district court pursuant to AS 28.05.141(d)6 and one in
superior court pursuant to AS 28.15.166(m).7
The district court appeal was dismissed on the state's
argument that appeal from a license revocation hearing is to the
superior court pursuant to AS 28.15.166(m), not to the district
court pursuant to AS 28.05.141(d). That decision was appealed
to the superior court which affirmed.
In the appeal to the superior court from the revocation
hearing, the hearing officer's decision was affirmed.
Borrego appeals both decisions of the superior court in
one consolidated appeal.
III. STANDARD OF REVIEW
For the questions of law which arise in this appeal,
this court applies its own independent judgment. On issues of
fact, an administrative agency's determination is reviewed under
the substantial evidence test. See Storrs v. State Medical Bd.,
664 P.2d 547, 555 (Alaska), cert. denied, 464 U.S. 937 (1983).
This is especially true where the findings of fact were made in a
quasi-judicial proceeding. See State, Alcoholic Beverage Control
Bd. v. Decker, 700 P.2d 483, 486 (Alaska 1985). Under this test,
the reviewing court determines whether the findings are supported
by such evidence as a reasonable mind might accept as adequate to
support a conclusion. Galt v. Stanton, 591 P.2d 960, 963 (Alaska
Borrego claims a number of errors were committed below,
both in the administrative hearing and in the subsequent judicial
appeals. We find that none of the claims of error has merit.
His attorney insisted at oral argument that it was important for
us to view these issues as intertwined. But even viewing the
events in this case as a whole, we detect no legal error nor any
A. Did Borrego Have a Right of Appeal to the District
Court Pursuant to AS 28.05.141(d)?
Describing this at oral argument as the central issue
of the case, Borrego claims that a person whose license has been
revoked for DWI "has the co-existing rights to file an appeal
. . . in both District and Superior Courts"pursuant to AS
28.05.141(d) and AS 28.15.166(m) respectively. The state claims
that Graham v. State, 633 P.2d 211 (Alaska 1981), and basic
principles of statutory construction lead to the conclusion that
appeal to the district court pursuant to AS 28.05.141(d) is
unavailable in DWI revocations.
We agree with the state that Graham governs this issue.
Graham involved a motorist arrested for drunk driving. She
refused to take a breathalyzer test, and her license was revoked
pursuant to former AS 28.35.032(b). Her appeal to the district
court for a stay of the revocation was denied. Graham, 633 P.2d
at 212-13. On appeal, we rejected her argument that she was
entitled to a stay under the provisions of former AS 28.05.076.
Id. at 215-16. We noted that this last provision had been
repealed and reenacted as AS 28.05.141 -- the very provision upon
which Borrego now relies as a basis for appealing to the district
court. Id. at 215 n.8. We concluded that AS 28.05.076 was
inapplicable to a license revocation based on a refusal to
perform a breathalyzer test. Id. at 215-16. It follows that the
current version of AS 28.05.076, i.e., AS 28.05.141, is likewise
inapplicable to license revocations for refusal to submit to a
We also find persuasive the state's statutory construc
tion arguments. Not only do the locations of the various appeal
provisions suggest that AS 28.15.166(m) governs in cases of DWI
revocations, but so does the language of AS 28.15.166(m). By its
own terms, 166(m) applies "[n]otwithstanding AS 28.05.141(d)."
Borrego interprets this to provide an additional avenue of
appeal. This makes little sense. Since AS 28.05.141(d) provides
for an automatic stay of the revocation, all aggrieved parties
would choose that path, and thus AS 28.15.166(m) would be
superfluous. Moreover, allowing appeals under both provisions
would result in duplicative appeals and needless waste of
B. Did the Disposition of the Criminal DWI Charge
Collaterally Estop the State from Finding that the
Arresting Officers Had Reasonable Grounds to Believe
that Borrego Had Been Driving While Intoxicated?
Borrego argues that the jury's finding of not guilty on
the DWI charge barred the hearing officer from finding that the
initial stop of Borrego was lawful. Citing Avery v. State, 616
P.2d 872, 873-74 (Alaska 1980), the state maintains that "[s]ince
the standard of proof in a criminal action is entirely different
from that in a civil licensing action . . . an acquittal on
criminal charges is not binding on parallel proceedings that are
civil in nature."
We agree that Avery controls the issue of collateral
estoppel in this case. Avery was a parolee who was acquitted on
a criminal charge of being a felon in possession of a firearm.
However, the parole board revoked his parole on that very ground.
When Avery challenged his parole revocation on appeal, we held
that "[c]ollateral estoppel does not apply because adjudication
of charges on the beyond a reasonable doubt standard does not
constitute an adjudication on the preponderance of the evidence
standard." Id. at 874. Avery makes it clear that the
administrative revocation of Borrego's driver's license is not
barred by his acquittal on DWI charges.9
C. Was Borrego Denied Due Process in the
Borrego's main claim here is, in essence, that the
hearing officer who affirmed the license revocation was biased
because he "prosecuted"the case against Borrego. According to
Borrego, the hearing officer had "rested his case"on the sworn
report of Officer Brunger and then "reopened"it in order to get
the testimony of the arresting officers. He also claims that the
hearing officer "openly engaged defense counsel in argument on
behalf of the state throughout the proceedings." According to
the state, the hearing officer was merely trying to get all the
evidence, a job which requires a more active role since the state
is not represented in revocation hearings.
The fact that the hearing officer asked various
questions throughout the proceedings does not indicate bias.
Thorne v. State, Dep't of Pub. Safety, 774 P.2d 1326, 1333
(Alaska 1989). And while the hearing transcript reveals some
disagreements between the hearing officer and defense counsel,
this certainly does not mean there was bias, particularly in
light of the fact that Borrego's concerns were often heeded.10 A
fair reading of the hearing transcript suggests that the hearing
officer was simply concerned with getting at the facts. We
perceive no bias.
Borrego also claims that the hearing officer based his
conclusion on inadmissible evidence, thus violating Borrego's due
process rights. This argument is meritless as the hearing
officer ultimately based his decision on direct testimony from
the arresting officers and a written report by Patton, an
eyewitness. Neither the direct testimony nor the written report
Borrego further complains about the hearing officer's
continuance of the hearing to allow the direct testimony of the
arresting officers. However, Borrego did not object to this
procedure. Moreover, the continuance was in response to an
objection by Borrego. Thus, it was not a "reopening" of the
case, as Borrego claims, since the case was never closed.
Finally, such a continuance is expressly allowed under AS
D. Was There Substantial Evidence that the Officers
Had Reasonable Grounds to Believe that Borrego Drove
Borrego claims that the evidence presented at the
revocation hearing failed to establish that the officers had
reasonable grounds to believe that Borrego had driven his vehicle
while intoxicated. Specifically, Borrego seems to argue that
there was insufficient evidence that he drove his pickup truck.
The state maintains that the substantial evidence test is easily
met in this case.
Borrego contends on various grounds that his statement
to the officers in the Brass Buckle that he had driven there does
not support the hearing officer's conclusion. But even aside
from Borrego's statement, there was enough evidence to reasonably
believe that Borrego had driven his vehicle there. This evidence
is found in Patton's written statement. First, Patton's
statement reveals that he saw Borrego's pickup pull up behind
Patton's vehicle. Thus, it is clear that somebody drove the
pickup just before Patton observed Borrego stumble his way into
the Brass Buckle. Second, Patton positively identified Borrego,
who was approaching from near the pickup. Third, Patton looked
at the pickup and saw no one else in or near it. It was
therefore reasonable to conclude that Borrego drove the pickup to
the Brass Buckle. Since Borrego does not contest that he was
drunk at the time, Patton's report alone gave the officers
reasonable grounds to believe that Borrego had been driving while
intoxicated.12 There is certainly substantial evidence supporting
the hearing officer's decision.
E. Borrego's Other Constitutional Claims
Finally, Borrego attacks the appeal procedure set forth
in AS 28.15.166(m) as a violation of equal protection and as
overly broad and vague. As these issues were not properly raised
below, we decline to address them now.13
Both decisions of the superior court are AFFIRMED.
1 Patton's statement reads:
I, Leonard Patton, while parked in
front of the Brass Buckle disco the 7th day
of August, 1988, approximately 12:54 [a.m.],
I saw a vehicle pull up behind me through my
passenger's side mirror, then the lights went
out. Then I turned around to my left to see
who it was, and Hal Borrego was walking
around my truck in a very staggering way. It
was very obvious that he had been drinking.
When I turned back to see who the person was,
I didn't see anyone else in or near his
little pickup, or anywhere else near the back
of my pickup. From what I saw, he was alone.
I knew it was him, but to be sure it was him,
I called out, "[H]ey, Hal, what's up". He
turned to me and said, "Well, I'm going in."
He then started staggering his way into the
disco. I then backed out, then headed
towards the police station to report what I
had just witnessed.
2 Later, Borrego apparently told another officer, Brunger,
that he had not been driving.
3 The hearing officer, who had not presided over the first
hearing, did not deal with what effect the jury verdict or the
court's ruling on the motion to suppress had on the issue at the
4 Brunger testified that Patton had told him about what
Patton had observed outside the Brass Buckle. Angstman objected
to this as hearsay. The hearing officer dismissed the objection,
saying "[t]hat would not be hearsay, he's recalling his
recollection of what he was told by Mr. Patton."
5 This section provides:
The determination of the hearing
officer may be based upon the sworn report of
a law enforcement officer. The law
enforcement officer need not be present at
the hearing unless either the person
requesting the hearing or the hearing officer
requests in writing before the hearing that
the officer be present. If in the course of
the hearing it becomes apparent that the
testimony of the law enforcement officer is
necessary to enable the hearing officer to
resolve disputed issues of fact, the hearing
may be continued to allow the attendance of
the law enforcement officer.
6 This section provides:
A person aggrieved by the decision
of the hearing officer may . . . initiate a
proceeding in district court to rescind the
department's action . . . . The court shall
conduct a hearing de novo. The decision of
the department . . . revoking . . . a license
. . . is stayed and does not take effect
until the pendency of an appeal.
7 This section provides:
Notwithstanding AS 28.05.141(d) . .
. a person aggrieved by the determination [of
the department of Public Safety] may file an
appeal in superior court for judicial review
of the hearing officer's determination. The
judicial review shall be on the record,
without taking additional testimony. 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
8 Currently, AS 28.15.165 governs license revocations for
refusal to submit to a chemical sobriety test. In 1983, AS
28.15.165 essentially replaced AS 28.35.032(b), the provision
under which Graham's license was revoked. Ch. 77, 3, 25 SLA
9 We also note that, aside from the differing burdens of
proof at the criminal trial and the administrative hearing, there
was another difference in the issues decided at these
proceedings. The issue before the jury was whether Borrego
actually operated his vehicle while under the influence. AS
28.35.030(a). Yet, as Borrego himself states, the issue before
the hearing officer was "whether the officer[s] had reasonable
grounds to believe [Borrego] was driving while intoxicated." See
AS 28.15.166(g). Thus, the first requirement for collateral
estoppel, that the issue decided in the prior adjudication was
"precisely the same,"has not been met. See Briggs v. State,
Dep't of Pub. Safety, 732 P.2d 1078, 1081 (Alaska 1987).
10 For example, the first hearing officer granted Borrego's
request for a continuance, and the second hearing officer agreed
that he could not rely on Officer Brunger's sworn report which
discussed things about which Officer Brunger had no personal
11 See supra note 5. Borrego claims that the reasonableness
of the initial stop is not an issue of fact. Yet clearly the
reasonableness of the initial stop depends on the facts of the
case (to which only the arresting officers could testify). Thus,
it was appropriate for the hearing officer to continue the
hearing to allow them to testify.
12 The fact that Patton's final, written report differed from
his initial report does not change our conclusion. On the
contrary, Patton probably first reported that he had seen Borrego
drive up to the Brass Buckle because it was such a logical
inference from what he had observed.
13 In Borrego's Statement of Points on Appeal to the superior
court, he did allege violations of equal protection. However, he
did not raise the same equal protection claim below that he urges
on appeal now. As for his claim that AS 28.15.166(m) is overly
broad and vague, these theories were not advanced in either of
his appeals to the superior court. None of these arguments,
therefore, was ever properly before the superior court, see
Appellate Rule 602(b)(1)[a], and thus they cannot be raised on
appeal to this court for the first time.