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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Snyder v. State, Dept. of Public Safety (03/15/2002) sp-5551

Snyder v. State, Dept. of Public Safety (03/15/2002) sp-5551

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


DENNIS C. SNYDER,             )
                              )    Supreme Court No. S-9565
               Appellant,      )
                              )    Superior Court No.
     v.                       )    4FA-96-1748 CI
                              )
STATE OF ALASKA,              )
DEPARTMENT OF PUBLIC          )        O P I N I O N
SAFETY, DIVISION  OF               )
MOTOR VEHICLES,               )    [No. 5551 - March 15, 2002]
                              )
               Appellee.      )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Jane F. Kauvar, Judge, pro tem.

          Appearances:  Robert  John,  Law  Office   of
          Robert   John,   Fairbanks,  for   Appellant.
          Marilyn  J. Kamm, Assistant Attorney General,
          and   Bruce  M.  Botelho,  Attorney  General,
          Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Bryner, Justices.  [Carpeneti,
          Justice, not participating.]

          BRYNER, Justice.


I.   INTRODUCTION

          After  an administrative hearing, the Division of Motor

Vehicles  revoked Dennis Snyders drivers license  on  the  ground

that  Snyder had driven with a blood alcohol level exceeding  the

legal  limit.   Snyder  appealed to  the  superior  court,  which

remanded  for  reconsideration  because  the  divisions   hearing

officer  had  misapplied  the applicable  burden  of  proof.   On

remand,  a  different  hearing officer reviewed  the  record  and

reaffirmed the original ruling; but the new officer reached  this

decision by finding that Snyder had not been truthful in  certain

portions  of his testimony that the original hearing officer  had

found  to  be truthful.  The superior court affirmed  the  second

ruling.   We  reverse, concluding that due process precluded  the

new   hearing   officer  from  revising  the  original   officers

assessment  of  testimonial  credibility  without  giving  Snyder

advance notice of the cases reassignment and an opportunity to re-

present live testimony.

II.  FACTS AND PROCEEDINGS

          In  March  1996 Alaska State Trooper Jacob  D.  Baergen

responded  to  a  report  of  a  car  blocking  traffic   at   an

intersection near North Pole.  Upon arrival, Trooper Baergen  saw

Dennis Snyder standing in the intersection; his car was stuck  in

the snowbank at the side of the roadway.  Snyder said that he had

driven  the  car into the snowbank to avoid hitting another  car,

but his description of the incident did not comport with the cars

resting position.  Trooper Baergen noted that Snyder had a strong

odor  of  alcohol about him, his eyes were watery and  bloodshot,

his  speech was slurred, and his balance unsteady.  The  accident

appeared  to  have happened shortly before the troopers  arrival,

and  Snyder said nothing to indicate that he had left  the  scene

afterwards.

          Based  on  these  observations, Trooper  Baergen  asked

Snyder to perform a standard set of field sobriety tests, all  of

which he failed.  The trooper then performed a preliminary breath

test  and  arrested Snyder for DWI after obtaining  a  result  of

.155. When a subsequent Intoximeter 3000 test yielded a result of

.147,  Snyder  was  charged  with DWI  and  issued  a  notice  of

administrative license revocation.

          Snyder contested the administrative revocation.   At  a

hearing  before  DMV Hearing Officer Joy Gifford,  Snyder  denied

consuming any alcohol before the accident.  He testified that the

accident  actually  occurred more than two hours  before  Trooper

Baergens  arrival.  According to Snyder, the accident  scene  was

about a mile or a mile and a half from his house.  Snyder did not

have  a  telephone but he used the phone of a next-door neighbor,

Michael Scott.  Snyder thus decided to walk to Scotts house  from

the  accident  scene in order to summon help.  He  claimed  that,

after  arriving at Scotts and calling a friend in  Fairbanks  for

help,  he accepted Scotts invitation to have some beer; over  the

next  hour  or hour and a half, he visited with Scott  and  drank

three to five beers. Snyder testified that he then walked back to

the  accident scene, arriving just before Trooper Baergen.  Scott

also   testified  at  the  revocation  hearing  and   essentially

confirmed Snyders version of events.

          At  the  conclusion of the evidentiary hearing, Snyders

counsel  argued that Snyders blood alcohol level at the  time  of

the  accident  did not exceed the legal limit because  the  tests

that  Trooper Baergen conducted reflected alcohol consumed  after

the  accident.   In  addressing this  argument,  Hearing  Officer

Gifford  expressly  found that the testimony  concerning  Snyders

post-accident  consumption was credible,  noting  that  the  only

conflict  appeared to be when and how much post-accident drinking

actually occurred.1  Referring to common knowledge and to what  a

reasonable person would not believe, however, the hearing officer

reasoned  that  the  alcohol Snyder consumed after  the  accident

could  not fully account for the results of his subsequent breath

test.2   On  this  basis, the hearing officer specifically  found

that  Snyders denial of pre-accident drinking was not  credible.3

Given  her belief that some consumption must have occurred before

          the accident and her uncertainty concerning how much drinking

occurred  and when it occurred, the hearing officer  went  on  to

conclude  that  Snyder had failed to prove that his blood-alcohol

level fell below the legal limit at the time of the accident.4

          After  Snyder  appealed this decision to  the  superior

court,  the  state  conceded  that Hearing  Officer  Gifford  had

erroneously  placed the burden of proof on Snyder to  prove  that

his blood-alcohol fell below the legal limit.  The superior court

remanded  the case to the division for reconsideration under  the

correct  burden.  The courts remand order instructed the  hearing

officer to decide the issue on the existing record:

          [T]he  Hearing  Officer  employed  the  wrong
          burden of proof by requiring Dennis Snyder to
          prove  his blood-alcohol level was below  .10
          percent  at  the time he had the accident  in
          this  case.  Accordingly, the case should  be
          remanded for the Hearing Officer to make  the
          sole  determination of whether Dennis Snyders
          blood-alcohol  level  was  .10   percent   or
          greater  at  the time he had the accident  in
          this  case.  This determination shall be made
          on the existing record with the State bearing
          the  burden of proving by a preponderance  of
          the  evidence  whether Dennis Snyders  blood-
          alcohol  level was .10 percent or greater  at
          the time he had the accident[.]
          
          On remand to the DMV, Snyders case was reassigned to  a

new  hearing  officer, Kathy Kutchins, evidently because  Hearing

Officer  Gifford had retired while the case was  pending  in  the

superior  court.  Nothing in the appellate record indicates  that

the   parties   received  advance  notice  of  the  reassignment.

Apparently, Hearing Officer Kutchins simply reviewed  the  record

of  the  original  hearing, came to a decision, and  scheduled  a

telephonic  proceeding to deliver her ruling.  At the proceeding,

Hearing  Officer Kutchins affirmed the original revocation  order

but  based  her  decision  on a new factual  theory:  emphasizing

Snyders prior DWI record, the new hearing officer expressly found

that  Snyders claim of post-accident alcohol consumption was  not

believable:

               Regarding  Mr.  Snyders  claim  that  he
          consumed alcohol after he went in the  ditch,
          I  dont  find  that testimony credible.   Mr.
          Snyder   has   four  pr   three   prior   DWI
          convictions.  I believe that, if he  went  in
          the  ditch and he had nothing to drink before
          he went into the ditch as he claims, he would
          not  go  home and drink beer and, then,  come
          back  to  the  accident scene  after  he  had
          consumed  alcohol knowing the  penalties  for
          driving while intoxicated.  I dont believe  a
          person would do that with the knowledge  that
          Mr. Snyder has.  He also did not tell Trooper
          Baergen that he consumed any alcohol.  And he
          says he was going to but he just got mixed up
          or  confused but I  I dont believe  that.   I
          dont find him to be credible.
          
Despite  Snyders counsels repeated attempts to argue  the  issue,

Hearing  Officer Kutchins refused to reconsider this  credibility

ruling  and  declined  to  explain her basis  for  rejecting  the

corroborating testimony of Scott.

          Snyder  renewed his appeal to the superior  court;  the

superior  court  affirmed the second hearing  officers  decision,

concluding,  among other things, that the second hearing  officer

neither  exceeded  the scope of the remand nor  violated  Snyders

right  to  due process by altering the original hearing  officers

credibility  determinations.  Snyder appeals the superior  courts

ruling.

III. DISCUSSION

          In considering an administrative appeal from a decision

issued  by the superior court as an intermediate court of appeal,

we review the agencys action directly, exercising our independent

judgment.5

          Snyder  initially argues that Hearing Officer  Kutchins

exceeded  the scope of the superior courts mandate on  remand  by

revising   Hearing  Officer  Giffords  findings  concerning   the

credibility of testimony presented personally before  Gifford  at

the  original hearing.  We disagree.  The superior courts  remand

order  instructed the hearing officer to review  the  record  and

make  the  sole  determination of whether Dennis  Snyders  blood-

          alcohol level was .10 percent or greater at the time he had the

accident  in  this  case.  This language  neither  expressly  nor

implicitly  precluded  the hearing officer from  reexamining  the

factual  underpinnings of the original decision.  And given  that

the   original   hearing  officers  unavailability   necessitated

reassignment  on  remand, we think that the new  hearing  officer

could  reasonably construe the order to call for a  reexamination

of the weight and credibility of testimonial evidence.

          Snyder  alternatively  maintains that  the  unannounced

reassignment of the case on remand to a new hearing  officer  and

the  new  hearing officers unforewarned reversal of the  original

credibility findings violated his right to due process   both  by

denying him the opportunity to present live testimony to the  new

hearing  officer  and  by  creating an  appearance  of  arbitrary

action.  We find these arguments persuasive.

          Recently, in Whitesides v. State, Department of  Public

Safety,  Division of Motor Vehicles, we considered the importance

of  live  testimony in administrative revocation  hearings  where

witness credibility may be at issue; we concluded:

          case  law  indicates that in-court  testimony
          has  persuasive characteristics  absent  from
          testimony  given out of the presence  of  the
          trier    of   fact.    Where   the   witnesss
          truthfulness  is  disputed, demeanor  can  be
          important.    In  such  cases,   denying   an
          in-person   hearing   denies   a   party   an
          opportunity to present evidence in  the  most
          effective way possible.[6]
          
          Here,  a  fair  reading of the superior  courts  remand

order  establishes  that  its  provision  requiring  the  Hearing

Officer to review the existing record on remand contemplated that

this  review  would be conducted by the original hearing  officer

the same Hearing Officer [who] employed the wrong burden of proof

at   the   original  hearing.   While  Hearing  Officer  Giffords

unanticipated departure necessitated reassignment  and  may  have

justified a thorough reexamination of her findings, the need  for

reassignment and reexamination could not justify the new  hearing

          officers decision to reverse Giffords credibility findings

without personally hearing and observing the disputed testimony.

          The  state nevertheless contends that Snyder waived his

objection   to   the   new  hearing  officers  participation   by

acquiescing  to  her authority.  Citing Moffitt v.  Moffitt,  the

state  insists  that Snyder had no right to sit  back  and  await

decision of the case before objecting to the procedure.7  But  in

Moffitt we observed that a successor judge lack[s] power to  make

new  findings  absent  consent  of  [the]  parties.8   Here,  the

appellate  record  contains  nothing  to  indicate  that   Snyder

received prior notice that his case had been reassigned to a  new

hearing  officer  on  remand  or that  the  new  hearing  officer

intended  to  reconsider the original credibility findings.   And

Hearing  Officer  Kutchins left Snyder no time to  sit  back  and

await  her  ruling:  immediately upon  convening  the  telephonic

proceeding  on  remand,  she  announced  the  decision.   Snyders

counsel  thereafter did his best to question  the  decision,  but

Hearing  Officer Kutchins soon made it known that she  would  not

reconsider.  On this record, we find no meaningful consent to the

new hearing officers participation and no waiver of Snyders right

to request live testimony.

          We  note  that  the absence of advance  notice  can  be

particularly damaging in an administrative revocation  proceeding

like Snyders because the state was not represented by counsel  at

the  initial  hearing and the original hearing officer  conducted

the  DMVs  cross-examination.  Hearing Officer Gifford thoroughly

questioned  Snyder and Scott on matters of particular concern  to

her  assessment  of  credibility.  Yet Hearing  Officer  Kutchins

later  based  her  own  credibility ruling on  different  matters

Snyders prior record and his failure to explain his post-accident

drinking  to  Trooper  Baergen.   These  matters  had  not   been

addressed   in  Hearing  Officer  Giffords  earlier  questioning.

Absent prior notice of Hearing Officer Kutchinss intent to  alter

the original credibility findings, then, Snyder had no reasonable

          opportunity to respond to the new hearing officers concerns.

          Considering  the  totality of these  circumstances,  we

conclude that Hearing Officer Kutchinss impromptu revision of the

original  credibility  findings  was  fundamentally  unfair   and

deprived  Snyder  of his right to due process.   The  DMVs  order

revoking Snyders license must therefore be vacated, and this case

must be remanded for a new hearing.

          Our decision to reverse and remand makes it unnecessary

to  address  Snyders alternative claims of error  except  to  the

extent  that  they  question the states  ability  to  pursue  the

revocation   proceedings   on  remand.    Snyder   raises   three

constitutional claims of this kind, contending that (a) the field

sobriety  tests  that  gave  Trooper Baergen  probable  cause  to

subject  Snyder  to a breath test amounted to unlawful  searches;

(b) alternatively, the field sobriety tests amounted to custodial

interrogation  conducted  without  a  prior  Miranda  warning  or

waiver;  and  (c) administrative revocation is barred  by  double

jeopardy and collateral estoppel because the state dismissed  DWI

charges  against Snyder based on the same incident.  We  conclude

that these claims are meritless.9  IV.  CONCLUSION

          The  Division of Motor Vehicles order revoking  Snyders

license is VACATED, and this case is REMANDED with directions  to

conduct  a  new  hearing at which Snyder has  an  opportunity  to

present live testimony.

_______________________________
     1    Hearing Office Gifford stated:

          We  move on to the area of whether or not the
          officer  had  reasonable grounds  to  believe
          that  reasonable grounds to believe that  Mr.
          Snyder  had  operated a motor  vehicle  while
          intoxicated.  In that area were going to look
          at    to   see  whether  or  not  there   was
          sufficient evidence to show that he was below
          a  .10  at the time of driving and to include
          that in this area.  In reviewing the evidence
          and  testimony here today, I dont have reason
          here  to doubt that [Snyder] might have  gone
          to  his  friends house and drank.   There  is
          some  conflicting testimony there in  regards
          to  when that drinking occurred and how  much
          that drinking was.
          
     2     Specifically, Hearing Officer Gifford  stated:   There
however,  I find that a reasonable person would not believe  that
four beers per person is a .155.  Its common knowledge that,  you
know,  if  youve  got .02 per drink  hes saying  that  you  drank
Miller over there with Mr. Scott at his house.

     3    Hearing Officer Gifford continued:
          
          There is testimony here from Mr. Snyder  that
          there  was no drinking before.  However,  its
          not   I  find  a  hard time in  finding  that
          credible, Mr. Snyder, because you would  have
          had  to have consumed more in order for  both
          the  PBT  and the breath test to put  you  up
          above.
          
     4    Hearing Officer Gifford concluded:

          I  dont  know when that consumption occurred.
          My  belief is that it probably occurred prior
          to  or  it  wouldnt have shown on  the  intox
          because  your drinking at your friends  house
          is  around  8  or so and youd tested  in  the
          intoximeter about two hours later.   So,  you
          know, your breath alcohol could be turning up
          from  that   what  you drank but  youre  also
          dissipating alcohol out and so you  there had
          to  be more consumption there and  for it  to
          be  at  a  .155  on the PBT at the  time  the
          officer  got there, I believe it  had  to  be
          some  earlier  drinking prior  to  that,  the
          drinking at a friends house.  And we put  all
          this  testimony  together in regards  to  the
          drinking,  I believe that theres insufficient
          grounds to believe that it was a .10  at  the
          time   at  below  a .10 at the  time  of  the
          driving.   There is insufficient evidence  to
          establish that.
          
     5     Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).

     6    20 P.3d 1130, 1137 (Alaska 2001).

     7     749  P.2d 343, 345 (Alaska 1988) (quoting Townsend  v.
Gray  Line  Bus  Co., 767 F.2d 11, 18 (1st Cir. 1985))  (internal
quotation marks omitted).

     8    Id.

     9     Specifically, we conclude that (a) Trooper Baergen had
probable  cause  to suspect Snyder of DWI even before  subjecting
him  to  field  sobriety testing; (b) Snyder waived  his  Miranda
claim  by  failing  to  argue  it at the  initial  administrative
hearing,  cf.   Moreau v. State, 588 P.2d 275, 279 (Alaska  1978)
(finding  that failure to assert Fourth Amendment claim at  trial
amounts  to  waiver  absent  an  egregious  violation);  and  (c)
dismissal of Snyders DWI charges provides no basis for collateral
estoppel,  see  Borrego v. State, Dept of Pub. Safety,  815  P.2d
360,  364 (Alaska 1991), and Snyder has failed to establish  that
an  administrative  license  revocation  amounts  to  a  criminal
sanction  that would be barred by double jeopardy.  See Davis  v.
Municipality of Anchorage, 945 P.2d 307, 311 (Alaska App. 1997).