Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Whitesides v Alaska Dept of Public Safety (04/13/2001) sp-5388

Whitesides v Alaska Dept of Public Safety (04/13/2001) sp-5388

     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
                                 


FRANK A. WHITESIDES,          )
                              )    Supreme Court No. S-8431
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1KE-96-504 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF PUBLIC SAFETY, DIVISION    )
OF MOTOR VEHICLES,            )
                              )
             Appellee.        )    [No. 5388 - April 13, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
                   Michael A. Thompson, Judge.


          Appearances:  Michael J. Zelensky, Ketchikan,
for Appellant.  Marilyn J. Kamm, Assistant Attorney General, Bruce
M. Botelho, Attorney General, Juneau, for Appellee.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          MATTHEWS, Chief Justice.      
          EASTAUGH, Justice, concurring.
          CARPENETI, Justice, dissenting.


          The question presented is whether licensed drivers are
entitled to in-person hearings before a hearing officer concerning
the  revocation of their licenses, or whether telephone hearings
satisfy due process.  We hold that where drivers' credibility is
material in-person hearings are required.  The right to drive is 
important, in-person communications are more effective in
transmitting a sense of whether a party is telling the truth, and 
added costs do not outweigh the value of in-person hearings. 
     Facts
          At approximately 11:00 p.m. on January 28, 1996,
Ketchikan Police Officer Brian Kertz was alerted to a possible car
fire in downtown Ketchikan.  Upon investigation, Kertz saw a "large
amount of smoke billowing from the engine"of the pickup truck in
which Frank Whitesides and his friend were sitting.  Whitesides was
sitting in the driver's seat, and the keys were in the ignition.
Whitesides and his friend ignored Kertz's command to exit the
vehicle.  Kertz used his fire extinguisher to put out flames coming
from beneath the vehicle and pulled the two out of the truck. 
          According to Kertz, Whitesides exuded a "very strong odor
of intoxicants"and his eyes were "bloodshot, and watery." Based
on his observations, Kertz administered field sobriety tests to
Whitesides; based on Whitesides's performance during these tests,
Kertz placed him under arrest for driving while intoxicated (DWI).
[Fn. 1] 
          Kertz took Whitesides to the police station, where he
began "processing"Whitesides for DWI.  Kertz read Whitesides the
"implied consent warning,"in which Kertz informed Whitesides that
he was being asked to submit to a chemical test of his breath.
Kertz explained the operation of the Intoximeter 3000 (the
apparatus that would measure the amount of alcohol in Whitesides's
breath) as well as the possible consequences of refusing to take
the breath test.  He also offered Whitesides access to a telephone
and telephone directory so that he could call an attorney.
          Eventually, Kertz prepared the Intoximeter to receive a
sample of breath and asked Whitesides, "Did you want to submit a
sample of breath?" Whitesides responded by protesting that he
"wasn't driving anywhere." At that point, Kertz repeated his
recitation of the potential consequences for refusing to submit to
a chemical test.  Kertz asked Whitesides to submit to the test
several more times; Whitesides's responses to these requests were
ambiguous and poorly focused.  For example, on one occasion,
Whitesides agreed to take the test but then protested that he had
not been driving.  On another occasion, Whitesides asked to review
information that Kertz had already read to him.
          Kertz eventually concluded that Whitesides had refused to
take the test and notified him that, if he changed his mind before
Kertz finished with the rest of the process, he would be allowed to
submit a sample.
          Disregarding Whitesides's protestations that he had not
refused to take the test, Kertz asked Whitesides whether he wanted
to sign a form saying that he refused.  Whitesides asked if he
needed a lawyer to read the form before he signed it.  After some
discussion with Kertz, Whitesides decided not to call an attorney. 
          Kertz then allowed Whitesides to read a document
detailing the refusal offense and its attendant consequences while
Kertz prepared the Intoximeter for a second time.  Kertz then told
Whitesides that "[i]f you refuse this time, this is the second time
that I've run the machine, you are going to be charged."
Whitesides responded by asking Kertz to "[w]ait a minute,"and
repeated that he wasn't driving.  Kertz then told Whitesides that
"[t]his is your last opportunity.  You've got to give me yes or no. 
Do you want to submit a sample of breath on the Intoximeter?"
Whitesides, however, did not reply with a "yes"or "no"; rather, he
asked Kertz whether he would be arrested for DWI if he submitted to
the test.
          Kertz then read Whitesides a "notice and order of
revocation"for his refusal to submit to the breath test. 
Following Whitesides's question as to the consequences of taking
and passing the test, [Fn. 2] his comment about the difficulty of
the situation he faced, his refusal to sign a form indicating his
refusal to take the test, and various other comments by Whitesides,
Kertz asked one last time, "Do you want to submit a sample of
breath in the Intoximeter 3000?" When Whitesides gave an
indiscernible answer, the officer declared the process over and
turned off the video recorder.  Kertz then issued Whitesides a
"notice and order of revocation"advising him that his driver's
license would be revoked for refusing to submit to testing.
          At the administrative hearing several months later,
Whitesides testified that he had agreed to take the test about "ten
seconds"after Kertz turned off the video recorder.  Kertz
testified that he could not remember whether Whitesides had made
this offer.  Kertz was also asked if he would have permitted
Whitesides to take the test if Whitesides had agreed to take it
just after Kertz turned off the video recorder.  He indicated
uncertainty because "I guess I've never had it actually happen that
I can remember before, in my career." 
     Proceedings
          Whitesides sought administrative review of the "notice
and order of revocation"of his driver's license on grounds that
included his claim that he did not refuse to take a breath test. 
Whitesides requested that the hearing be conducted in person.  On
March 1, 1996, the Department of Public Safety gave Whitesides
notice of an administrative hearing scheduled "at the discretion of
D.M.V."
          Whitesides was also charged with the criminal offenses of
DWI and Refusal.  A criminal trial commenced but ended in a
mistrial.  The criminal charges were later dismissed by the
district attorney's office. 
          The Division of Motor Vehicles (DMV) never scheduled an
in-person hearing.  Meanwhile, effective July 4, 1996, the
legislature amended AS 28.15.166(e) to require that revocation
hearings "be held by telephone unless the hearing officer finds
that a telephonic hearing would substantially prejudice the rights
of the person involved in the hearing or that an in-person hearing
is necessary to decide the issues to be presented in the hearing."
[Fn. 3]  Consequently, the Department of Public Safety scheduled a
telephone hearing for October 2, 1996. Whitesides objected to the
telephone hearing, arguing that "[t]he failure to allow a hearing
in-person would substantially prejudice [his] rights . . . in that
he is a witness . . . along with, if necessary, the arresting
officer and potentially another witness . . . ." Whitesides also
objected to the extensive delay in scheduling his hearing.
          The hearing officer overruled Whitesides's objections,
and the DMV proceeded with its revocation action against
Whitesides's license.  The hearing officer heard Whitesides's
challenge to the revocation in a series of three telephone hearings
involving Whitesides, his attorney, and the hearing officer, 
beginning on October 2, 1996 -- some eight months after the arrest.
After hearing argument from Whitesides's attorney and testimony
from Whitesides, Kertz, and the district attorney who dismissed the
criminal charges, the hearing officer found that Whitesides refused
to submit to a breath test.  Whitesides's license was ordered
revoked for a period of one year from the date of the hearing
officer's decision.
          Whitesides appealed this decision to the superior court,
which upheld the hearing officer's determination.  On appeal to
this court, Whitesides argues (1) that the DMV violated his right
to due process by denying an in-person hearing; (2) that the DMV's
delay in holding the license revocation hearing violated
Whitesides's right to due process; (3) that the "lack of
regulations"governing administrative license revocation hearings
violated Whitesides's due process rights; (4) that the hearing
officer's findings that Whitesides refused the breath test were
unsupported by the evidence; and (5) that the hearing officer erred
in finding that there were reasonable grounds to believe that
Whitesides was guilty of DWI when he was arrested. We decide that 
only the first issue has merit and summarily determine the other 
issues adversely to Whitesides. [Fn.4]

     The DMV's Denial of an In-person Hearing Constituted a Due
Process Violation.
          Arguing that credibility was crucial to the central issue
in this case, whether he agreed to take the breath test, Whitesides
contends that his license revocation should be "reversed for
failure to grant an in-person hearing." Without a chance to
observe Whitesides's demeanor, he states, the hearing officer could
not "fairly and meaningfully"assess his credibility.  He contends
that since his credibility was at issue in the hearing, the due
process clause of the Alaska Constitution [Fn. 5] affords him the
right to present his testimony in person to the trier of fact.  The
standard of review applicable to this issue is de novo. [Fn. 6]
          We apply the framework of Mathews v. Eldridge [Fn. 7]
when evaluating whether administrative proceedings satisfy due
process. [Fn. 8] We consider:
          First, the private interest that will be
affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.[[Fn. 9]]
We proceed to review these considerations in the context of this
case.
          1.   A driver's license is an important property
interest.
          Whitesides's interest is in retaining his right to drive. 
Both federal and state courts have recognized that a driver's
license is an important property interest.  In Bell v. Burson, the
United States Supreme Court explained that, "[o]nce licenses are
issued . . . their continued possession may become essential in the
pursuit of a livelihood."[Fn. 10]  Issued licenses are "important
interests of the licensees, . . . [which] are not to be taken away
without that procedural due process required by the Fourteenth
Amendment."[Fn. 11]
          In Berlinghieri v. Director of Motor Vehicles, the
California Supreme Court explained at length the practical
importance of a driver's license:
               In our present travel-oriented society,
the retention of a driver's license is an important right to every
person who has obtained such a license. . . .  [T]he reality of
contemporary society is that public transportation systems may not
meet the needs of many travellers [sic] and other forms of
transportation, such as taxicabs, are not economically feasible for
a large portion of the population.

               Whether a driver's license is required
only for delivering bread, commuting to work, transporting children
or the elderly, meeting medical appointments, attending social or
political functions, or any combination of these or other purposes,
the revocation or suspension of that license, even for a six-month
period, can and often does constitute a severe personal and
economic hardship.

               For plaintiff, as a route driver, her
ability to drive a delivery truck affects her very livelihood and
the suspension of her license obviously will affect her directly,
immediately, and adversely. Further, as a single working parent,
she is faced with the numerous responsibilities of child rearing,
many of which necessitate a speedy and reliable means of
transportation. The suspension of plaintiff's license, even for
only six months, may have profound and obvious effects on her "life
situation"and thus, . . . constitutes "quasi-judicial"
administrative decisions that have an impact on the individual
"sufficiently vital . . . to compel full and independent review"by
the court.[ [Fn. 12]]
          This court has likewise recognized that "[a] driver's
license is an important property interest."[Fn. 13]  Calling
driver's license revocation hearings quasi-criminal, we have held
that the right to test the reliability of a breath test applies in
civil driver's license revocation proceedings as well as in
criminal prosecutions for DWI. [Fn. 14]  And we have applied a
prophylactic rule to exclude from a license revocation proceeding
the results of a Breathalyzer test secured in violation of the
defendant's right to counsel. [Fn. 15]  These cases underscore the
importance of the right to drive. 
          2.   In-person testimony is a valuable tool for
evaluating the credibility of witnesses.

          Here we deal with the second of the Mathews factors.  In
terms applicable to this case, do telephone hearings create an
unacceptable risk of an erroneous deprivation of a person's right
to drive?  This turns in large part on the value of the live
testimony of a party.
          The significance of live testimony and demeanor evidence
has been long recognized.  Blackstone explained that, "[by]
examination of witnesses viva voce, in the presence of all mankind,
. . . and this [method] only, the persons who are to decide upon
the evidence have an opportunity of observing the quality, age,
education, understanding, behaviour, and inclinations of the
witness."[Fn. 16]  This method "was also indeed familiar among the
antient Romans . . . [a]nd this, or somewhat like it, was continued
as low as the time of Hadrian."[Fn. 17]
          Courts have emphasized the advantages inherent in a
traditional hearing in which witnesses testify in the presence of
the trier of fact.  For example, in Mattox v. United States, the
United States Supreme Court noted that personal examination and
cross-examination of the witness provides the accused with
          an opportunity, not only of testing the
recollection and sifting the conscience of the witness, but of
compelling him to stand face to face with the jury in order that
they may look at him, and judge by his demeanor upon the stand and
the manner in which he gives his testimony whether he is worthy of
belief.[ [Fn. 18]]  
In this state, we have also recognized the uniqueness of the trial
court's position to judge credibility.  In Alaska Foods, Inc. v.
American Manufacturer's Mutual Insurance Co., we held that 
          when there has been oral testimony, and the
trial judge has observed the witnesses in person, we must pay some
deference to his judgment as to credibility to the extent that his
findings are based on such oral testimony . . . because . . . we
cannot have the advantage that the trial judge has had of basing a
judgment as to credibility on the demeanor of the witnesses that
appear before him.[ [Fn. 19]]  

Other states have long traditions acknowledging the special
abilities of the fact finder.  In Durant v. Rogers, the Illinois
Supreme Court held:
          It is a rule, that the jury shall be the sole
judges of the credibility of a witness.  They see them on the
stand, mark their demeanor, perceive many small matters which
escape less observant eyes, and are in the best position to judge
of credibility, and they have an undoubted right to find in favor
of the testimony of one when weighed against that of the other."[[Fn. 20]] 

          The unique ability of the hearing officer or trial court
to evaluate credibility has, for example, a strong influence on the
standard of review.  According to Evans v. Evans, this court
reviews findings of fact for substantial evidence because the trier
of fact is "in the best position to evaluate the witnesses'
credibility and their testimony."[Fn. 21]  Deference to those who
actually observe witnesses is codified at Alaska Civil Rule 52(a): 
"Findings of fact shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses." This court
consistently grants deference to trial courts where credibility is
at issue, as for example in Kohl v. Legoullon, where we noted that
"[t]he trial court is in the best position to assess the
credibility of witnesses."[Fn. 22]  Similarly, in Crook v.
Mortenson-Neal, we recognized that "the superior court was in the
best position to evaluate the defendants' demeanor and credibility. 
We, therefore, defer to the court's view as expressed in the quoted
finding."[Fn. 23]
          This case law indicates that in-court testimony has
persuasive characteristics absent from testimony given out of the
presence of the trier of fact. [Fn. 24]  Where the witness's
truthfulness is disputed, demeanor can be important. [Fn. 25]  In
such cases, denying an in-person hearing denies a party an
opportunity to present evidence in the most effective way possible.
          We do not wish to overstate the benefits of communicating
in person, nor the drawbacks of telephone communication.  We live
in an era when efficiency often dictates that many communications
be machine-facilitated.  When the technology employed is operating
well, such communications are at least good enough to transmit
basic information.  But the potential for empathy and nuanced
understanding is much greater in person-to-person communications
than in any of the various forms of telecommunicating.  Likewise,
when a party is denied an in-person hearing before a trier of fact,
there is a risk that the party will be less able to convey the
message that his story is the truth.
          We recognize that legal authority supports the use of
telephone hearings and testimony in many circumstances.  For
example, Alaska Civil Rule 99 allows one or more parties, counsel,
witnesses, or even the judge "to participate telephonically in any
hearing or deposition for good cause and in the absence of
substantial prejudice to opposing parties."[Fn. 26]  In Matter
Involving Triem, we rejected the contention that a committee
chairperson's telephone participation in a bar disciplinary hearing
violated the defendant's due process rights, adding that "[t]he
routine nature of such appearances belies [the litigant's] due
process concerns."[Fn. 27]  Most recently, in Silvers v. Silvers,
we found an abuse of discretion where the trial court refused to
allow the defendant to testify by telephone in a civil trial. [Fn.
28] 
          These authorities show that the convenience afforded by
telephone participation is not generally outweighed by the values
associated with in-person participation.  But, except for Triem,
which is distinguishable on other grounds, [Fn. 29] they do not
hold that a party who desires to present testimony in person to the
trier of fact does not have that right.  
          3.   The government's interest in cost saving and public
safety will not be greatly prejudiced by granting in-person
hearings where credibility is at issue.

          The Mathews v. Eldridge construct next requires that we
consider the nature of the government's interest, how it is
affected by the challenged procedure, and how it might be affected
if the procedure were changed. [Fn. 30]  We turn to these
questions. 
          The foremost government interest involved in driver's
license revocation proceedings is public safety. Intoxicated
drivers kill and injure others.  One can reasonably conclude that
revoking the licenses of those who refuse to take breath tests is
an important part of the state's program to reduce instances of
driving while intoxicated.  The state also has an interest in
providing hearings at a reasonable cost. [Fn. 31]
          Public safety will not be prejudiced by providing a
person who is under threat of license revocation with an in-person
hearing.  Such hearings were the norm until the 1996 passage of AS
28.15.166(e).  There is no suggestion in the legislative history of
the 1996 act that its purpose was to increase the revocation rate
of those accused of refusing breath tests.  Indeed, if the
revocation rate were increased by prohibiting in-person hearings,
this would tend to prove that this reform increased the risk of the
erroneous deprivation of driving rights.  
          Cost saving is at the root of the presumptive prohibition
of in-person hearings.  The length of a hearing conducted by
telephone should not be significantly different than a hearing
conducted in person.  But if hearing officers are to travel to the
DMV offices closest to where respondents reside, then travel costs
and travel time for hearing officers will be greater for in-person
hearings than for telephone hearings.
          But greater costs are only incurred in cases in which the
hearing officer must travel.  In most cases no travel is necessary. 
Most revocations arise in Anchorage.  DMV has a large number of
employees in Anchorage and could require some hearing officers to
maintain offices there.  Similarly, in cases arising in Juneau
there is no justification for refusing an in-person hearing, since
DMV hearing officers have offices there.  
          As to other locations without resident hearing officers,
economies could be effected in other ways.  Ad hoc hearing officers
can be appointed.  Or magistrates might be authorized to serve.
[Fn. 32]  Alternatively, hearing officers can limit their travel to
times when they have several cases for hearing.  Further,
respondents requesting an in-person hearing might be required to
travel to a location served by a resident hearing officer, or to
pay a share of the cost of the hearing officer's travel. 
          We do not minimize the legitimacy of cost savings as an
objective of government.  But given the circumstances and
alternatives discussed above, we do not think that providing in-
person hearings to parties who want them, in cases where their
credibility is at issue, must be significantly more costly than the
present system.  
          Considering then the importance of the driving privilege,
the greater potential for effective communication in an in-person
context, the need for effective communication where the credibility
of a party is at issue, and the limited nature of the prejudice
that the state would suffer by providing in-person hearings in such
cases, we conclude that such hearings should be provided where
requested by the party.
     Subsection .166(e) Should Be Construed So as to Avoid
Unconstitutionality.

          Alaska Statute 28.15.166(e) requires telephone hearings
"unless the hearing officer finds that a telephonic hearing would
substantially prejudice the rights of the person involved in the
hearing or that an in-person hearing is necessary to decide the
issues to be presented in the hearing." This does not specify the
circumstances under which a telephone hearing may substantially
prejudice a defendant's rights or when an in-person hearing is
necessary to decide the issues presented.  "Where it is reasonable
to do so, we will construe a statute to avoid constitutional
problems."[Fn. 33]  In keeping with our conclusion that in-person
hearings are required by due process in cases where the credibility
of a party is in question, we construe subsection .166(e) to
require in-person hearings where a party requests such a hearing
and material questions depend on the credibility of the party's
testimony. 
          In the present case, Whitesides made a timely request for
an in-person hearing and objected when a telephone hearing was
scheduled instead.  This case involves material issues of his
credibility.  Therefore, an in-person hearing should have been
held.
     Conclusion
          The decision of the superior court is REVERSED and this
case is REMANDED to the superior court with instructions to VACATE
the revocation of Whitesides's driver's license and to REMAND the
case to the Division of Motor Vehicles for an in-person license
revocation hearing.

EASTAUGH, Justice, concurring. 

          The result the court reaches here is correct, but I
disagree with the court's analysis.  In my view, Justice
Carpeneti's dissent correctly reasons that a case-specific inquiry
is required when deciding whether due process demands that a
hearing in a driver's license revocation case be held in person. 
In comparison, the court's opinion may assume that every driver's
license revocation inherently raises credibility issues and that it
is not necessary to make a particularized request for an in-person
hearing by identifying logically valid reasons why the hearing must
be held live.
          Even though I agree with Justice Carpeneti that the
inquiry must be case-specific, I agree with the result reached by
the court. 
          It is a close question whether Whitesides informed the
hearing officer of circumstances that made it an abuse of
discretion to deny his request.  But on balance, Whitesides did
enough.  In his request for administrative hearing, Whitesides,
through counsel, asserted that "I did not refuse to take a breath
test." In his objection to an administrative hearing, he stated,
again through counsel, that "the failure to allow a hearing in-
person would substantially prejudice the rights of licensee, in
that he is a witness along with, if necessary, the arresting
officer . . . ." These assertions might have been more specific,
but together they should have led the hearing officer to realize
that Whitesides was denying that he had refused to be tested, and
that he and the arresting officer would disagree about whether he
had refused.  This disagreement inherently raised a credibility
issue that was critical to the limited issues relevant to his
revocation proceeding.  It was therefore an abuse of discretion to
deny Whitesides an opportunity to present live testimony to the
hearing officer.
          I therefore concur in the result the court reaches
although I respectfully disagree with its analysis.  

CARPENETI, Justice, dissenting.

          I dissent from today's ruling for two reasons.  First, I
disagree with the court's implied finding that Whitesides
adequately raised before the hearing officer his claim that due
process required an in-person hearing because credibility was a
central issue.  In fact, nowhere in the entire administrative
record of this case is the word "credibility"found.  What
Whitesides did, in shotgun fashion, was raise several non-specific
claims, to one of which this court has now, after the fact,
attached a particular meaning that the record does not support. 
Second, and more important, the statute in question, properly
applied by hearing officers of the Department of Public Safety
whose decisions are reviewable by this court, protects the due
process rights of drivers who face license revocation for refusal
to submit to tests.
     Whitesides did not request an in-person hearing on grounds
that credibility would be at issue.

          Whitesides first requested an in-person hearing in
Ketchikan because of the number of witnesses involved: "[M]y client
requests that his administrative hearing of his license revocation
be held in person in Ketchikan.  In other words, this hearing
should be conducted by the Hearing Officer in Ketchikan.  This is
due to the number of witnesses to be called."(Emphasis added.) 
Later, after the department scheduled a telephonic hearing, he
filed an "Objection To Administrative Hearing (and Request for
Telephonic [sic] Hearing)"in which he objected to the DMV's notice
of telephonic hearing.  He stated: 
          The failure to allow a hearing in-person would
substantially prejudice the rights of licensee, in that he is a
witness along along [sic] with, if necessary, the arresting officer
and potentially another witness (in rebuttal, Trevor Stephens,
Asst. DA).  Because of the number of diverse witnesses, any hearing
should be in Ketchikan, not by telephone, and licensee requests the
hearing in Ketchikan.

(Emphasis added.)  In short, Whitesides's argument was that the
number of witnesses required the hearing in Ketchikan, not that
credibility was his concern.  Finally, shortly before the hearing
Whitesides filed "Additional Objections to Hearing." While he
argued several ways [Fn. 1] in which his due process rights would
be violated by the upcoming hearing, he made no mention of the fact
that it was to be telephonic or that credibility was an issue.  In
these circumstances, I cannot join the court's implied finding that
Whitesides adequately raised credibility as the reason for
requesting an in-person hearing.
     Alaska Statute 28.15.166(e) protects the due process rights of
drivers faced with administrative revocation of their licenses for
failure to submit to tests.

          The statute gives the hearing officer the power to
require an in-person hearing if it is necessary to protect the
rights of the driver or for other reasons:
               The hearing under this section must be
held by telephone unless the hearing officer finds that a
telephonic hearing would substantially prejudice the rights of the
person involved in the hearing or that an in-person hearing is
necessary to decide the issues to be presented in the hearing.[[Fn. 2]] 

It seems clear that the legislature was concerned precisely about
the issues addressed in today's opinion and set out the procedure
by which those issues should be addressed.  And in this case, the
hearing officer considered the non-specific request for an in-
person hearing, properly determined that it did not set out
sufficient grounds, notified counsel for Whitesides of its
deficiency, and specifically invited supplementation of the request
for an in-person hearing:
               This letter is in reference to y[o]ur
motion for an in person hearing for your client Frank Whitesides. 
The rescheduling of the hearing does not change the issues for
review under AS 28.15.166(g).  The statutes governing the issues
rema[i]n the same and were in place at the time of your client's
arrest.  Your motion is denied.
               We do not believe that rescheduling a
hearing to a telephonic hearing denies any participant their rights
under due process.  Your motion did not establish any circumstances
that would substantially prejudice the rights of the parties
involved or that an in person hearing is necessary to decide the
issues.
               If there are circumstances that we have
not been advised of, you should present them at the hearing. 
Please contact this office if you have any questions.

(Emphasis added.)  Whitesides failed to respond to the letter or to
advise the hearing officer at the hearing of those "circumstances
that [the hearing officer had] not been advised of"that would lead
her to reverse her decision not to provide an in-person hearing.
          The statute establishes the proper standard to protect
the right of the driver to an in-person hearing. [Fn. 3]  Such a
hearing will be afforded if a telephonic hearing substantially
prejudices any party or if an in-person hearing is necessary to
decide any issues. [Fn. 4]  In this case the hearing officer
properly determined that "the number of witnesses"was not a
sufficient reason to require an in-person hearing, that is, did not
substantially prejudice the rights of the parties nor establish
that an in-person hearing was necessary to decide the issues.  But
she went further and noted the standard for Whitesides and invited
further information or argument on the issue.  Under these
circumstances, there is no reason to construe the statute further
and no reason to provide relief to a litigant who neither raised
the credibility issue originally nor when requested by the hearing
officer to provide any further reason for the relief he sought.
          Our jurisprudence makes clear the case-specific nature of
the application of discretionary rules regarding telephonic versus
in-person proceedings. [Fn. 5]  We ourselves have adopted a rule
for telephonic proceedings that adopts the standard -- absence of
substantial prejudice -- utilized by the legislature in AS
28.15.166(e):
               The court may allow one or more parties,
counsel, witnesses or the judge to participate telephonically in
any hearing or deposition for good cause and in the absence of
substantial prejudice to opposing parties.[ [Fn. 6]] 

Especially in rural areas of the state, trial courts not uncommonly
allow telephonic proceedings where the judge is in one location, a
witness in another, and the attorneys in another.  
          The court should review the department's action in light
of the specific facts of each case under the standard that we have
always utilized, abuse of discretion. [Fn. 7]  Because I believe
that in this case the hearing officer did not abuse her discretion
in declining to order an in-person hearing where the reason
advanced was "the number of witnesses,"and where no mention was
made of assessing the credibility of the witnesses, I would find no
abuse of discretion and affirm the superior court's affirmance of
the hearing officer's action.



                            FOOTNOTES


Footnote 1:

     AS 28.35.030(a) defines operating a vehicle while intoxicated
as follows:

               A person commits the crime of driving
while intoxicated if the person operates or drives a motor vehicle
or operates an aircraft or a watercraft
               (1) while under the influence of
intoxicating liquor, or any controlled substance;
               (2) when, as determined by a chemical
test taken within four hours after the alleged offense was
committed, there is 0.10 percent or more by weight of alcohol in
the person's blood or 100 milligrams or more of alcohol per 100
milliliters of blood, or when there is 0.10 grams or more of
alcohol per 210 liters of the person's breath; or 
               (3) while the person is under the
combined influence of intoxicating liquor and a controlled
substance.


Footnote 2:

     The Ketchikan Police Department's unofficial transcript
contains an erroneous version of this exchange.  We have
characterized Whitesides's comment based on our review of the tape.


Footnote 3:

     See 1st Sp. Sess. Ch. 6, sec. 8 SLA 1996.  Former AS
28.15.166(e)
provided for an in-person hearing held "at the office of the
department nearest to the residence of the person requesting the
hearing." Current law provides for the same locations for in-
person hearings when they are found to be required.


Footnote 4:

     Concerning his delay claim, Whitesides likens this case to
United States v. $8,850 in United States Currency, 461 U.S. 555
(1983), in which the United States Supreme Court held that delay in
initiating a civil forfeiture case may violate due process and
suggested a test similar to that used to determine whether an
accused's right to a speedy trial in a criminal case is violated. 
Id. at 564.  But this case is different from civil forfeiture cases
because Whitesides was not deprived of his right to drive pending
the hearing, whereas in civil forfeiture cases the property to be
forfeited has typically been removed from the possession and use of
the respondent pending the hearing. Id.  Further, although
Whitesides claims that the eight-month delay resulted in Officer
Kertz's lack of memory concerning what was said after the video
recorder was shut off, this claim is not supported by the record. 
At Whitesides's criminal trial in June 1996, within speedy trial
limits, Kertz was already unable either to verify or to directly
contradict Whitesides's account of events after the video camera
was turned off. 

          Whitesides's lack of regulations argument is fully
addressed by the decision of the superior court.  Procedures for
carrying out administrative review of license revocations are set
forth in AS 28.15.166.  These procedures, as supplemented by
pertinent case law, afford a licensee due process.  Whitesides
claims that the hearing officer's determination that he had refused
to take the breath test is unsupported by substantial evidence;
such a claim juxtaposes his refusals while the video camera was
running with the alleged cure of these refusals just after the
video camera was turned off.  The video tape itself is substantial
evidence that Whitesides refused to take the test.  Likewise, the
video tape supports an inference that it is unlikely that
Whitesides cured his prior refusals, given the behavior shown by
the tape.  As the hearing officer stated:

               Mr. Whitesides is asking me to take a
leap of faith.  I have to believe that two people transformed their
demeanor as soon as the videotape was turned off.  In that
instance, Mr. Whitesides changes his negative attitude to a
positive one and Officer Kertz changed from trying to get a breath
sample to trying to prevent one.  I don't believe this happened. 

Further, Kertz's statement that he did not remember anyone ever
recanting also supports the conclusion that a recantation did not
take place in Whitesides's case.  

          As to the argument that there were not reasonable grounds
to believe that Whitesides had been guilty of DWI, Whitesides
argues that the vehicle in which he was sitting was inoperable
because it had caught fire while he was sitting in it.  But the
evidence is uncontradicted that the vehicle was operable when
Whitesides turned it on, and Officer Kertz's observations of
Whitesides's condition reasonably suggested that Whitesides was
intoxicated.


Footnote 5:

     Article I, section 7, of the Alaska Constitution provides, in
part, that "[n]o person shall be deprived of life, liberty, or
property, without due process of law."


Footnote 6:

     See Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226, 228
(Alaska 1987) (court will adopt the rule most persuasive in light
of precedent, reason, and policy).


Footnote 7:

     424 U.S. 319 (1976).


Footnote 8:

     See Noden v. Commercial Fisheries Entry Comm'n, 680 P.2d 493,
499 (Alaska 1984).


Footnote 9:

     Mathews, 424 U.S. at 335.


Footnote 10:

     402 U.S. 535, 539 (1971).


Footnote 11:

     Id.


Footnote 12:

          657 P.2d 383, 387-88 (Cal. 1983) (citations omitted); see
also Shavers v. Kelley, 267 N.W.2d 72, 87 (Mich. 1978), cert.denied, 
442 U.S. 934 (1979) ("In Michigan the independent mobility
provided by an automobile is a crucial, practical necessity; it is
undeniable that whether or not a person can obtain a driver's
license or register and operate his motor vehicle profoundly
affects important aspects of his day-to-day life.").


Footnote 13:

     Champion v. Department of Pub. Safety, 721 P.2d 131, 133
(Alaska 1986).


Footnote 14:

     See id. at 132-33.


Footnote 15:

     See Whisenhut v. State, Dep't of Pub. Safety, 746 P.2d 1298,
1299 (Alaska 1987).


Footnote 16:

     3 William Blackstone, Commentaries *373.


Footnote 17:

     Id. *374.


Footnote 18:

     156 U.S. 237, 242-43 (1895).


Footnote 19:

     482 P.2d 842, 845 (Alaska 1971). 


Footnote 20:

     87 Ill. 508, *3 (Ill. 1877).


Footnote 21:

     869 P.2d 478, 481 (Alaska 1994).


Footnote 22:

     936 P.2d 514, 518 n.5 (Alaska 1997)


Footnote 23:

     727 P.2d 297, 306 (Alaska 1986).


Footnote 24:

     See, e.g., Monsma v. Williams, 385 P.2d 107, 111 (Alaska 1963)
("In a case, heavy with demeanor evidence as this was, it was the
task of the trial court, not ours, to resolve the apparent conflict
between the evidence of the plaintiff and that of the defendant.");
Awes v. Walker, 370 P.2d 187, 190 (Alaska 1962) ("In reviewing the
findings of the trial court, we do not have before us evidence of
Walker's demeanor while testifying.").


Footnote 25:

     Cf. McBride v. State, 368 P.2d 925, 926 (Alaska 1962), cert.denied, 
374 U.S. 811 (1963), modified by Barber v. Page, 390 U.S.
719 (1968) ("'demeanor evidence' is acknowledged to be highly
desirable and an advantage to be insisted upon whenever it can be
had and where an accused considers it important"(footnote
omitted)).


Footnote 26:

          Alaska R. Civ. P. 99.  Notably, there is no provision
whereby a juror may participate telephonically.


Footnote 27:

     929 P.2d 634, 642 (Alaska 1996), cert. denied, 520 U.S. 1198
(1997).


Footnote 28:

     999 P.2d 786, 790 (Alaska 2000).


Footnote 29:

     Triem is distinguishable because the objection there concerned
the inability of one committee member participating by telephone in
a second hearing to assess the demeanor of witnesses, not the
party.  The party had testified in person before the whole
committee at an earlier hearing.  Further, only one committee
member participated by telephone.  The other members heard the
witnesses in person. 


Footnote 30:

     424 U.S. 319, 335 (1976).


Footnote 31:

     See Mathews v. Eldridge, 424 U.S. at 348.


Footnote 32:

     See AS 22.15.100(10) (granting district judges and magistrates
authority "to review administrative revocation of a person's
driver's license or nonresident privilege to drive . . . when
designated as a hearing officer by the commissioner of
administration and with the consent of the administrative director
of the court system.").


Footnote 33:

          See Chenega Corp. v. Exxon Corp., 991 P.2d 769, 785
(Alaska 1999).




                      FOOTNOTES   (Dissent)


Footnote 1:

     Whitesides argued that it was a violation of due process for
DMV to act without regulations adopted by the commissioner; that
"[r]evocation of a driver's license requires the full panoply of
due process protections, including a jury trial"; that his conduct
was "indisputably safe conduct: safely parked and braked, and
safely warding off hypothermia"; and that federal law makes clear
that any revocation can be only temporary and that the delay in his
case of more than six months was more than temporary. 


Footnote 2:

     AS 28.15.166(e).


Footnote 3:

     See id.


Footnote 4:

     See id.


Footnote 5:

     Compare Gregg v. Gregg, 776 P.2d 1041, 1044 (Alaska 1989)
(trial court did not abuse discretion in allowing telephonic
testimony of material witness over objection) with Silvers v.
Silvers, 999 P.2d 786, 790 (Alaska 2000) (trial court abused
discretion in precluding party from testifying telephonically).


Footnote 6:

     Alaska R. Civ. Proc. 99.


Footnote 7:

     See Silvers, 999 P.2d at 790; Carvalho v. Carvalho, 838 P.2d
259, 262 (Alaska 1992).