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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).
