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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brown v Alaska Dept of Administration (04/13/2001) sp-5389

Brown v Alaska Dept of Administration (04/13/2001) sp-5389

     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
                                 


THOMAS A. BROWN,              )
                              )    Supreme Court No. S-8716
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-6824 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF ADMINISTRATION, DIVISION   )
OF MOTOR VEHICLES,            )
                              )
             Appellee.        )    [No. 5389 - April 13, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                 Sigurd E. Murphy, Judge pro tem.


          Appearances:  Brent R. Cole, Marston & Cole,
P.C., Anchorage, for Appellant.  Timothy W. Terrell, Assistant
Attorney General, Anchorage, Bruce M. Botelho, Attorney General,
Juneau, for Appellee.


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


          PER CURIAM
          CARPENETI, Justice, with whom EASTAUGH,
Justice, joins, dissenting.
          EASTAUGH, Justice, dissenting.


     1.   A police officer arrested Thomas Brown for driving while
intoxicated, handcuffed him, and took him to a police substation
for processing.  The officer then administered a chemical breath
test which showed Brown's blood-alcohol level to be .109 percent,
in excess of the legal limit of .10 percent. [Fn. 1]  The police
officer informed Brown that he was entitled to an independent
chemical test of his breath or blood.  Brown declined to seek an
independent test, but he insisted that he did so only because the
handcuffs were hurting him and he wanted them removed right away. 
The police officer revoked Brown's driver's license based on the
results of the breath test.
     2.   Brown sought an administrative hearing to review the
revocation of his license.  The hearing officer denied Brown's
request that the hearing be held in-person.  At the outset of the
hearing, Brown objected on the grounds that a telephone hearing
"hinders our ability to present our case."  This objection was
overruled.  After holding a telephone hearing, the hearing officer
concluded that Brown had knowingly and voluntarily waived his right
to an independent alcohol test, and the hearing officer upheld a
one-year revocation of Brown's license.  The superior court
affirmed.
     3.   On appeal to this court, Brown argues that he did not
voluntarily waive his right to an independent blood test and that
the Division of Motor Vehicles violated his due process rights by
conducting the hearing telephonically.
     4.   We review directly the factual determinations of the
administrative agency under the substantial evidence test, [Fn. 2]
deciding whether "the findings are supported by such evidence as a
reasonable mind might accept as adequate to support a conclusion."
[Fn. 3]  We review questions of constitutional interpretation de
novo. [Fn. 4]
     5.   Recently, in Whitesides v. State, Department of Public
Safety, Division of Motor Vehicles, we held that the hearing
officer may not deny an in-person hearing in driver's license
revocation proceedings in cases that involve issues of the
licensee's credibility. [Fn. 5]  This case involves contested
issues of fact as to whether Brown voluntarily waived his right to
an independent blood test.  Therefore, Brown was entitled to an in-
person hearing.
     6.   Based on Whitesides, we VACATE the revocation of Brown's
license and REMAND for an in-person hearing.
     
CARPENETI, Justice, with whom EASTAUGH, Justice, joins, dissenting.
          I dissent from the court's decision in this case for the
same reasons that I dissented in Whitesides v. State, Department of
Public Safety, Division of Motor Vehicles. [Fn. 1]  Due process is
not violated per se by a telephonic administrative agency hearing,
[Fn. 2] and the hearing officer did not abuse her discretion by
refusing to hold an in-person hearing given the reasons that were
offered in this case.
          A party to an administrative proceeding may not obtain
appellate review of an issue unless the party has raised the issue
before the agency. [Fn. 3]  As occurred in Whitesides, Brown did
not raise concerns about witness credibility in his request for an
in-person hearing.  Brown's entire request for an in-person hearing
was as follows:
          Additionally, I request that this matter be
set on for an in-person administrative hearing and not a telephonic
hearing.  At the hearing, I intend to introduce exhibits and have
an expert testify. 

The hearing officer denied the request, stating that any exhibits
could be submitted in advance or faxed the day of the hearing and
that an expert witness could testify telephonically as well.  She
even expressly invited Brown to present any additional information
on how a telephonic hearing would substantially prejudice his
rights.  But Brown offered no additional explanation. 
          The hearing officer correctly concluded that Brown, who
had the burden of explaining his position, failed to raise any
persuasive reason why a telephonic hearing would substantially
prejudice his rights.  For that reason, I conclude that the hearing
officer did not abuse her discretion by denying an in-person
hearing given the arguments that were presented to her.

EASTAUGH, Justice, dissenting. 

          I join in Justice Carpeneti's dissent in this case.  He
persuasively reasons in his dissent in the companion case of
Whitesides v. State, Department of Public Safety [Fn. 1] that a
case-specific inquiry is required when deciding whether due process
demands that a hearing in a driver's license-revocation case be
conducted in person.  I agree that the inquiry must be case-
specific.  Nothing inherent about administrative driver's license-
revocation proceedings invariably precludes hearing officers from
conducting the hearings telephonically.
          Considering the facts of this case, I also agree with
Justice Carpeneti's case-specific conclusion that Brown did not
inform the hearing officer of circumstances that required an in-
person hearing.   I therefore respectfully dissent from the court's
opinion.


                            FOOTNOTES


Footnote 1:

     See AS 28.35.030(a)(2).


Footnote 2:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).


Footnote 3:

     Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360, 363
(Alaska 1991) (citation omitted).


Footnote 4:

     See Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998).


Footnote 5:

     __ P.3d __, Op. No. 5388 (Alaska, April 13, 2001).




                  FOOTNOTES (Carpeneti Dissent)


Footnote 1:

     __ P.3d __, Op. No. 5388 (Alaska, April 13, 2001). 


Footnote 2:

     See Casey v. O'Bannon, 536 F. Supp. 350, 353-54 (E.D. Pa.
1982) (holding that telephonic welfare benefits hearing withstood
Mathews due process analysis); State ex rel. Human Servs. Dep't v.
Gomez, 657 P.2d 117, 118 (N.M. 1982) (holding telephonic welfare
benefits hearing did not violate due process); Babcock v.
Employment Div., 696 P.2d 19, 21 (Or. App. 1985) (holding that
telephonic unemployment compensation hearing did not violate due
process).  
          For a discussion of the principle that a telephonic
hearing is not a per se due process violation but may be a
violation in a particular case, see Sterling v. District of
Columbia Dep't of Employment Servs., 513 A.2d 253, 255 & n.2 (D.C.
App. 1986) (holding telephonic unemployment compensation hearing
did not per se violate due process but did violate due process
where hearing officer did not mention reason for his call and hung
up on party's receptionist).


Footnote 3:

     See Amerada Hess Pipeline Corp. v. Alaska Pub. Utils. Comm'n,
711 P.2d 1170, 1181 n.22 (Alaska 1986) ("As a general rule, we will
not consider arguments never raised before the trial court. . . .
[T]his same rule should apply to arguments never presented to an
agency whose decision is appealed." (footnote omitted)).




                   FOOTNOTES (Eastaugh Dissent)


Footnote 1:

     __ P.3d __, Op. No. 5388 (Alaska, April 13, 2001).