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McGhee v. Alaska (1/23/98), 951 P 2d 1215
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.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT M. McGHEE, )
) Supreme Court No. S-7817
) Superior Court No.
v. ) 3AN-S96-56 CI
STATE OF ALASKA, ) O P I N I O N
Appellee. ) [No. 4937 - January 23, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Elaine M. Andrews, Judge.
Appearances: Eugene B. Cyrus, Eagle River,
for Appellant. Douglas D. Gardner, Assistant Attorney General, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Robert M. McGhee's driver's license was administratively
revoked following his arrest for driving while intoxicated (DWI).
The revocation was enhanced to reflect two prior DWI convictions.
McGhee subsequently obtained a court order vacating one of the
prior convictions and was then reconvicted. Given the new
conviction date for the prior DWI, McGhee now has only one DWI
conviction predating the arrest that triggered his revocation.
Does this change entitle McGhee to a shorter period of revocation?
We conclude that it does not. Because McGhee remains convicted of
the same DWIs that subjected him to an enhanced revocation, the
temporary set-aside of the prior DWI requires no alteration of the
On October 21, 1994, McGhee was arrested for DWI. After
taking and failing a breath test, McGhee was notified that the DMV
would revoke his driver's license. Following a hearing on January
9, 1995, before a DMV hearing officer, the DMV issued an order
affirming its notice of revocation; since McGhee had previously
been convicted of DWI in 1985 and 1989, the period of revocation
was fixed at three years. McGhee was represented by counsel at the
DMV hearing but did not question the validity of his prior DWI
convictions or challenge the enhanced period of revocation. McGhee
was informed of his right to appeal the revocation within thirty
days but did not do so.
Approximately six months passed. On June 16, 1995, in a
district court hearing on his 1994 DWI charge, McGhee moved to set
aside his 1989 DWI conviction. He argued that his original plea of
no contest in that case was defective because the court failed to
expressly advise him of his right to a jury trial. After reviewing
the record of the 1989 change of plea hearing, District Court Judge
William Fuld granted McGhee's motion and vacated the prior
conviction. McGhee immediately re-entered a no contest plea to the
1989 charge; he then pled no contest to the 1994 DWI, and Judge
Fuld imposed sentences for both the 1989 and 1994 DWIs.
Another six months later, McGhee returned to the DMV,
seeking a reduction of his enhanced period of license revocation.
McGhee reasoned that because the withdrawal and re-entry of his no
contest plea had changed the conviction date for his 1989 DWI, he
now had only one DWI conviction that was entered before the date of
his arrest on the 1994 DWI. On this basis, McGhee asked the DMV to
"roll back"his three-year license revocation to one year, the
mandatory period of revocation for a DWI arrestee with one prior
The DMV refused to reduce the period of revocation,
concluding that the "change in conviction date does not require the
[DMV] to reconsider and amend the administrative action entered
prior to the court action." The DMV also noted that its hearing
officer correctly based the period of revocation "on the record at
the time of the hearing"and that McGhee withdrew his plea on the
1989 DWI after the agency action had become final. McGhee appealed
to the superior court, which affirmed the DMV's decision. McGhee
then filed this appeal.
On appeal, McGhee renews the arguments he advanced before
the DMV and the superior court. He claims that the June 16, 1995,
withdrawal and re-entry of his no contest plea on the 1989 DWI left
only one DWI conviction entered prior to his 1994 DWI arrest.
McGhee insists that this change in circumstances required the DMV
to issue a revised revocation order reflecting the current
chronology of his driving record.
We disagree. [Fn. 1] Under AS 28.15.165, the DMV is
authorized to revoke the license of any driver who fails a breath
test administered following an arrest for DWI. The period of
revocation is fixed at ninety days for drivers who have no DWI
convictions within ten years preceding the arrest; that period is
enhanced to one year for drivers with one prior conviction and
three years for drivers with two prior convictions. See AS
28.15.165(d); 28.15.181(c)(1)-(3); 28.35.030(o)(4)(A).
For purposes of establishing the number of prior DWI
convictions and the resulting period of revocation, two points of
reference are critical: the date of the DWI arrest that triggered
the revocation and the date of entry of any prior DWI conviction.
All DWI convictions entered within the ten-year period immediately
preceding the date of the current arrest must be counted in
determining the applicable period of revocation. Wik v. State,
Dep't of Pub. Safety, 786 P.2d 384, 387 (Alaska 1990). [Fn. 2]
At the time of McGhee's revocation hearing, the DMV
hearing officer correctly determined that two DWI convictions had
been entered against McGhee within the ten years preceding his 1994
DWI arrest; accordingly, the hearing officer properly ordered
McGhee's license revoked for three years. McGhee appeared with
counsel at the DMV hearing but did not question the validity of his
prior convictions. [Fn. 3] Under AS 28.15.166(m), McGhee had
thirty days to appeal to the superior court the DMV hearing
officer's order affirming the revocation. Since McGhee failed to
appeal, the hearing officer's decision became final thirty days
after its issuance on January 9, 1995.
McGhee has cited no statute or regulation providing for
reconsideration of a DMV revocation order after it becomes final.
Even in the absence of any express grant of authority to reconsider
and modify a final revocation order, however, the DMV may well have
inherent modification power when enforcement of the original order
would result in manifest injustice. [Fn. 4] Yet the DMV's decision
to deny modification in McGhee's case clearly worked no manifest
The original three-year revocation order accurately
reflected McGhee's then-existing driving record. Continued
enforcement of this three-year revocation order might have become
manifestly unjust had the district court's later order vacating
McGhee's 1989 DWI conviction led to dismissal of the 1989 charge,
or to McGhee's acquittal. But in actuality, the set-aside order
led almost instantly to McGhee's reconviction for precisely the
McGhee thus had two prior DWI convictions when he was
arrested for his 1994 DWI and when he appeared before the DMV
hearing officer in the ensuing revocation proceeding. As a result
of his reconviction on the 1989 DWI, he continued to have
convictions for the same two offenses when he later returned to the
DMV seeking a reduction; only the date of conviction for the 1989
DWI had changed.
Enforcing the original revocation order in light of this
mere change in date poses no risk of actual injustice to McGhee.
[Fn. 5] On the other hand, reducing the original period of
revocation based solely on this change would result in significant
prejudice to the important interest of public safety.
The purpose of Alaska's enhanced license revocation
statute is "not . . . to visit additional punishment on an
offender, 'but in order to protect the public against incompetent
and careless drivers.'" Robinson v. Texas Dep't of Pub. Safety,
586 S.W.2d 604, 606 (Tex. Civ. App. 1979), quoted with approval in
Wik, 786 P.2d at 387. In applying the enhancement statute, we must
bear in mind that "[t]he intent of the legislature must govern and
the policies and purposes of the statute should not be defeated."
Id. (quoting Belarde v. Municipality of Anchorage, 634 P.2d 567,
568 (Alaska App. 1981)).
Given McGhee's reconviction on the 1989 DWI after his
initial conviction was vacated, the DMV's original three-year
period of revocation accurately reflects his potential danger as a
driver at the time of his arrest for DWI in 1994. Hence, in terms
of the community's need for protection, the enhanced period of
revocation is still an appropriate societal response.
We have consistently expressed disfavor with the tactical
manipulation of DWI conviction dates to avoid enhanced license
revocations. See, e.g., Wik v. State, Dep't of Pub. Safety, 786
P.2d 384, 387 (Alaska 1990); Tulowetzke v. Dep't of Pub. Safety,
743 P.2d 368, 371 (Alaska 1987). McGhee's case involves nothing
else. In these circumstances, amendment of the original revocation
order was properly denied.
The superior court's decision affirming the DMV's denial
of reconsideration is AFFIRMED.
This court gives no deference to a decision of the superior
court when it acts in an intermediate appellate capacity. CH Kelly
Trust v. Municipality of Anchorage, Bd. of Equalization, 909 P.2d
1381, 1382 (Alaska 1996). When, as here, an appeal involves an
agency's resolution of questions of law not involving agency
expertise, we review the agency's decision de novo, exercising our
independent judgment. State, Dep't of Pub. Safety v. Fann, 864
P.2d 533, 536 (Alaska 1993).
Moreover, all prior DWIs must be counted separately,
"regardless of whether the prior convictions were entered
simultaneously." Tulowetzke v. Dep't of Pub. Safety, 743 P.2d 368,
371 (Alaska 1987).
We have previously held that, in an appeal from a DMV license
revocation order, the superior court has jurisdiction to consider
whether out-of-state DWI convictions are "constitutionally infirm"
-- that is, if they "truly were entered in violation of a driver's
fundamental rights." State, Dep't of Pub. Safety v. Fann, 864 P.2d
533, 537 (Alaska 1993). Our recognition in Fann of the superior
court's authority to consider the constitutionality of out-of-state
DWI convictions -- which we characterized as having "presumptive
validity,"id. at 536 -- should not be read as suggesting that DMV
hearing officers are empowered to rule on constitutional challenges
to facially valid Alaska judgments.
Cf. Fann, 864 P.2d at 537 (indicating avoidance of manifest
injustice as the basis for allowing challenges to out-of-state DWI
convictions that "truly were entered in violation of a driver's
Any possibility of actual unreliability resulting from the
procedural flaw in McGhee's original change of plea hearing was
effectively cured by McGhee's reconviction upon his re-entering a
no contest plea to the same charge. There is no danger in these
circumstances of manifest injustice resulting from enhancement
based on a conviction involving actual innocence. Nor is there
danger under these circumstances that the change in dates could
give rise to actual unfairness stemming from lack of prior notice
or lack of an opportunity to reform. See, e.g., State v.
Rastopsoff, 659 P.2d 630, 636 (Alaska App. 1983).
McGhee characterizes his 1989 DWI conviction as
"unconstitutional,"and thereby suggests that his case involves the
form of manifest injustice addressed in Fann, 864 P.2d at 537.
There we observed that manifest injustice might arise from
enhancement of a license revocation based on a prior conviction
that was entered in violation of a defendant's fundamental
constitutional rights. Cf. Pananen v. State, 711 P.2d 528, 531-32
(Alaska App. 1985) (adopting Justice Marshall's concurring opinion
in Baldasar v. Illinois, 446 U.S. 222, 227-29 (1980)). McGhee's
reliance on Fann is unavailing. McGhee was allowed to withdraw his
original no contest plea because he was not expressly advised of
his right to a jury trial. This procedural flaw was a violation of
Alaska Criminal Rule 11(c)(2) but did not in itself amount to a
constitutional violation. Cf. Swensen v. Municipality of
Anchorage, 616 P.2d 874, 879 (Alaska 1980) (holding that a similar
Rule 11 violation did not call for automatic reversal but was
subject to a case-specific harmless error analysis "like other non-
constitutional errors"). To the extent that the violation of Rule
11 might be characterized as constitution-related because the
rule's advisement requirement effectuates the constitutional right
to a jury trial, this is not the type of fundamental constitutional
violation contemplated in Fann.