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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pasco v. State (04/12/2002) sp-5557

Pasco v. State (04/12/2002) sp-5557

     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


JEFFREY PASCO,                )
                              )    Supreme Court No. S-9920
             Appellant,            )
                              )    Superior Court No. 3AN-99-3451
CI
     v.                       )
                              )    O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF ADMINISTRATION, DIVISION   )    [No. 5557 - April 12, 2002]
OF MOTOR VEHICLES,            )
                              )
             Appellee.             )
________________________________)


          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District,
          Anchorage, Joel H. Bolger, Judge pro tem.

          Appearances:  Dennis P. James, Anchorage, for
          Appellant.  Marilyn J. Kamm, Assistant
          Attorney General, and Bruce M. Botelho,
          Attorney General, Juneau, for Appellee.

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

          EASTAUGH, Justice.

I.        INTRODUCTION

           Jeffery Pasco attempted to operate a Plymouth  station

wagon while he was significantly intoxicated.  He claimed at  his

administrative license revocation proceeding that he  was  trying

to  move  the  vehicle  because it  was  on  fire  and  the  fire

threatened  his nearby home.  The hearing officer  rejected  this

"necessity"  defense.   We affirm, because  substantial  evidence

supports  the  hearing  officer's  finding  that  Pasco  was  not

attempting to drive the car in response to an emergency.

II.       FACTS AND PROCEEDINGS

           Jamie  and Bruce Oskolkoff woke up very early  on  the

morning  of April 24, 1999 to a strange sound.  They investigated

and  discovered  that one of their next-door-neighbor's  vehicles

was on fire and that the engine was roaring.  Jamie dialed 911 at

about  3:15 a.m. and reported the incident to the operator  while

Bruce  rescued  their  neighbor, Jeff  Pasco,  from  the  burning

vehicle.   Paramedics transported Pasco and Bruce  to  the  local

emergency  room  to  treat  them for  illness  related  to  smoke

inhalation.   The  vehicle, a 1993 Plymouth  station  wagon,  was

completely destroyed by the fire.

           Trooper Ted VanAntwerp contacted Pasco at the hospital

and  "observed  Pasco to have red, watery eyes, and  an  odor  of

alcohol on his person." Pasco told Trooper VanAntwerp that he had

consumed  approximately seven drinks between 7:00 p.m.  and  2:00

a.m.  at  the  American Legion in Ninilchik, and had driven  home

shortly  thereafter.   After  the treating  physician  determined

Pasco was fit to leave, Pasco submitted to and failed a series of

field  sobriety  tests  in  the hospital  parking  lot.   Trooper

VanAntwerp  escorted Pasco to the Soldotna Alaska  State  Trooper

station and administered an Intoximeter test.  The test indicated

a  breath  alcohol concentration of 0.177 percent  at  6:45  a.m.

VanAntwerp  issued  Pasco a Notice and Order  of  Revocation  for

driving  while  intoxicated, and Pasco  requested  a  hearing  to

contest  the  revocation.   Parallel  criminal  proceedings  were

dismissed by the state under Alaska Criminal Rule 43(a) on August

28, 1999.

           The hearing officer affirmed the trooper's action in a

telephonic hearing in July 1999 and revoked Pasco's privilege  to

drive  for one year.  Pasco appealed to the superior court, which

affirmed  the decision of the Department of Public  Safety  in  a

Memorandum Decision in September 2000.

           Pasco  did  not dispute the presence  of  any  of  the

elements  of  the  offense of driving while  intoxicated  in  his

hearing  or  in  his  appeal to the superior court.   Rather,  he

argued that the defense of necessity should apply because he only

attempted to drive while intoxicated in order to protect his home

and  dog  against the risk of fire posed by the burning  vehicle.

His  appeal to this court renews this defense and also raises due

process challenges.

III.      DISCUSSION

     A.        Standard of Review

           Alaska  Statute  28.15.166(m) sets out  the  standards

applicable  to the superior court's review of a driver's  license

revocation by the Department of Public Safety:

          The  judicial review shall be on the  record,
          without  taking  additional  testimony.   The
          court  may  reverse  the [hearing  officer]'s
          determination  if the court  finds  that  the
          [hearing  officer]  misinterpreted  the  law,
          acted  in an arbitrary and capricious manner,
          or  made a determination unsupported  by  the
          evidence in the record.
          
Because  we independently review the hearing officer's  decision,

we apply the same standard of review.1  Accordingly, we apply the

"substitution of judgment" test to legal questions not  involving

agency expertise,2 and review factual findings to ensure they are

supported by "substantial evidence."3  We consider constitutional

questions de novo.4

     B.        Substantial Evidence Supports the Hearing Officer's
          Rejection of Pasco's Necessity Defense.
          
           Pasco  argues that his attempt to drive while impaired

was  reasonably necessary to prevent his house from  catching  on

fire.   Pasco is required to prove three elements to  prevail  on

his necessity defense:5

          (1)   The act charged must have been done  to
          prevent a significant evil;
          (2)    there  must  have  been  no   adequate
          alternative;
          (3)   the  harm  caused must  not  have  been
          disproportionate to the harm avoided.[6]
          
The  first two elements are satisfied by a defendant's reasonable

belief  at the time of acting; as to the last element, the  court

makes  an  objective determination whether the defendant's  value

judgment was correct.7  The hearing officer found that Pasco  did

not  satisfy the first element of the defense because she did not

believe  that  Pasco  was  attempting to  drive  his  vehicle  in

response  to an emergency.  She further held that, even  assuming

Pasco's  story was true, he did not satisfy the second and  third

elements  of the test because he had adequate lawful alternatives

to  driving while impaired, and the harm caused was greater  than

the harm avoided.

           To satisfy the first element of the necessity defense,

Pasco must prove that he only attempted to drive the vehicle away

from  his house to prevent a significant risk posed to his  house

and dog by the burning vehicle.  If substantial evidence supports

the hearing officer's finding that Pasco was not behind the wheel

for  this  reason,  his  defense fails.  We  affirm  the  hearing

officer's  rejection of the defense because substantial  evidence

undermines  Pasco's version of the circumstances surrounding  his

attempt  to drive the car.  Accordingly, we need not address  the

second and third elements of the defense.

          Pasco testified at the hearing that as he was preparing

for bed in the early morning hours, he looked outside and noticed

smoke  coming from the vehicle.  He thought the smoke was  caused

by  an electrical fire, and decided to open the hood in order  to

disconnect the battery.  Unable to open the hood from outside the

vehicle, Pasco entered the passenger compartment in search of the

hood  release  mechanism.  Once inside  the  vehicle,  Pasco  saw

flames coming from the hood and became concerned about the safety

of his dog and home.  Pasco provided no evidence that the vehicle

was  sufficiently close to his house to constitute a  significant

threat.

           In  an affidavit supplied to the superior court, Pasco

admitted  that  his  memory of the next  sequence  of  events  is

"sketchy."   He  relied in part on information  supplied  by  the

neighbor who rescued him, Bruce Oskolkoff.  Pasco testified  that

the  vehicle suddenly roared to life as he was attempting to find

the hood release.8  When the engine began to race, Pasco tried to

"drop  the throttle" to shift the vehicle into gear and  move  it

away  from  his house.  The interior of the vehicle  filled  with

smoke.  Pasco then saw flames coming from underneath the firewall

into  the passenger compartment and decided that he "was  in  way

over  [his] head and [he'd] better get out."  "The next  thing  I

remembered was Bruce having his hand under my arm, yelling to  me

to get out."

           Pasco  did not tell any part of this story to  Trooper

VanAntwerp.    Pasco  told  VanAntwerp  that  he   had   consumed

approximately seven drinks between 7:00 p.m. and 2:00 a.m. at the

American  Legion  bar in Ninilchik, and had driven  home  shortly

thereafter.  At the hearing, however, Pasco recanted most of  his

earlier  statements to Trooper VanAntwerp.  He testified that  he

actually left the American Legion around 12:35 a.m. after  having

at  most  four drinks there.9  He explained that his  substantial

inebriation   some   six  hours  later  was   due   to   drinking

approximately half a bottle of whiskey after arriving home  while

watching  television, reading his mail, and  generally  relaxing.

When  asked  about  the omissions and discrepancies  between  his

testimony   and  his  statement  to  Trooper  VanAntwerp,   Pasco

explained that he had been confused due to a combination of sleep

deprivation  and  smoke inhalation, and also  that  he  had  been

afraid  to  admit  to  the trooper that  he  had  been  drinking.

Pasco's  position, therefore, is that he was not  impaired  while

driving  home from the bar, and that he only attempted  to  drive

while impaired in order to save his house and dog.

           The  hearing  officer did not find  Pasco's  testimony

credible.   She was "struck by how [Pasco's] testimony is  marked

with inconsistency and reconstruction due to . . . lack of recall

to  the  actual event."  She did not believe Pasco's  explanation

for  failing to tell his story to the trooper.  After noting that

"[t]he  trooper's information was that [Pasco] had fallen  asleep

behind the wheel,"10 she concluded as follows:

          I  don't  find your testimony credible  about
          the    circumstances   about   the    vehicle
          starting[,]  and I really need to  stress  to
          you  that  it  was  your  testimony  and  the
          credibility   of  your  testimony   and   the
          difference   between  what   you   told   the
          officer[] and what you testified to and  your
          inability to recall and that [you were]  just
          simply   reconstructing  .  .  .   was   very
          important to me.
          
            The  hearing  officer's  disbelief  is  supported  by

substantial evidence.  Pasco's account from the time  he  entered

the vehicle until Bruce rescued him is largely reconstructed from

conversations with Bruce.  Further, his testimony contradicts his

statements to Trooper VanAntwerp on the morning of the  fire  and

VanAntwerp's  sworn  statement to  the  hearing  officer.   Pasco

sought  to  characterize  these contradictions  as  the  innocent

effects of inebriation, exhaustion, smoke-inhalation, and fear of

the  legal  consequences  that might follow  if  he  admitted  to

attempting to operate the vehicle while intoxicated.  But Pasco's

hearing  testimony  is inconsistent in precisely  those  respects

necessary  to establish a necessity defense.  Aside from  Pasco's

suspect credibility, his version of the events leading up to  the

fire is highly implausible.  Accordingly, we will not reverse the

hearing  officer's determination that Pasco's testimony  was  not

credible.11

           Because we conclude that substantial evidence supports

the  hearing officer's determination that Pasco failed to satisfy

the  first  element  of the test, we need not  determine  whether

Pasco  had  adequate  lawful alternatives besides  operating  the

vehicle  while  intoxicated, or whether the harm  caused  by  his

illegal action was disproportionate to the harm avoided.

     C.        Pasco Waived His Due Process Claims by Failing to Raise
          Them Below.
          
           Pasco  limited his argument before the hearing officer

and  the  superior  court to his necessity  defense.   He  raises

several  due  process claims for the first time  in  his  opening

brief  to this court, and another argument for the first time  in

his  reply  brief.   In general, we will not  consider  arguments

raised  for  the first time on appeal.12  This rule applies  with

equal  force  to  arguments never presented to  an  agency  whose

decision  is  appealed.13   However,  application  of  this  rule

"presupposes an opportunity to present objections to  the  agency

before  a  decision  is rendered by that agency."14   Several  of

Pasco's  claims  did  not  arise until  the  officer  issued  her

decision; therefore, he did not have an opportunity to raise them

before the agency.  Pasco offers no explanation, however, for why

he   did   not  make  these  arguments  in  the  superior  court.

Accordingly, they are waived.

IV.       CONCLUSION

           Because  the hearing officer's rejection of the  first

element  of Pasco's necessity defense is supported by substantial

evidence,  we  AFFIRM  the  superior court's  affirmance  of  the

hearing   officer's  one-year  revocation  of  Pasco's   driver's

license.

_______________________________



      1     Williamson v. State, Dep't of Pub. Safety,  779  P.2d

1238,  1239 (Alaska 1989); Miller v. State, Dep't of Pub. Safety,

761 P.2d 117, 118 n.2 (Alaska 1988).



      2     Earth  Res. Co. v. State, Dep't of Revenue, 665  P.2d

960, 965 (Alaska 1983) (citation omitted).



       3      Williamson,   779  P.2d  at  1239  (construing   AS

28.15.166(m)  to require hearing officer's factual determinations

to be supported by substantial evidence) (emphasis added).



     4    State v. Anthony, 810 P.2d 155, 156-57 (Alaska 1991).



      5     At  least  two courts have held that the  defense  of

necessity is unavailable in civil license revocation proceedings.

Foster  v.  Snyder, 90 Cal. Rptr. 2d 207, 213 (Cal.  App.  1999);

State  v.  Pollander,  706 A.2d 1359,  1363  (Vt.  1997).   These

courts,  interpreting  summary license revocation  or  suspension

procedures  identical  to  our own in all  significant  respects,

found  that the plain meaning of the statutes establishing  these

procedures precluded the defense of necessity.  Foster,  90  Cal.

Rptr. at 213; Pollander, 706 A.2d at 1363.



          Because the parties did not brief the issue whether the

defense is available, and because we affirm the hearing officer's

determination that the defense fails on the merits, we assume for

purposes  of this case only that the defense applies to civil  or

administrative license revocation proceedings.





      6     Nelson  v.  State, 597 P.2d 977,  979  (Alaska  1979)

(citations omitted).





      7    Id. at 980 n.6 (citations omitted); see also Cleveland

v.  Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska  1981)

(citations omitted).





     8    Pasco suggested to the hearing officer that the vehicle

"just started through being hot wired . . . the wires could  have

touched  each  other,  they  were melting."   Perhaps  not  fully

convinced  by his own testimony, Pasco later affied that  he  may

have played a more active role in starting the vehicle.





     9    Pasco corroborated this part of his story by submitting

to  the  hearing  officer several signed, unsworn  statements  of

friends  who  had been with him at the bar.  The hearing  officer

discounted  the  evidentiary value of  these  statements  because

Pasco's  friends  did not testify under oath at the  hearing  and

were not subject to cross-examination.





      10     The  hearing officer observed at the outset  of  the

hearing  that  Trooper VanAntwerp "personally appear[ed]"  before

her  and  submitted a sworn statement.  Among  other  facts  also

found  in  his  report,  the  trooper stated  that  he  initially

contacted Pasco "after [Pasco] was taken by an ambulance  to  the

hospital  after falling asleep in a car."  Pasco did not  request

Trooper VanAntwerp's presence at the hearing.





      11    We recently noted that the hearing officer "is in the

best  position to evaluate the witnesses' credibility  and  their

testimony."  Whitesides v. State, Dep't of Pub. Safety,  20  P.3d

1130, 1136 (Alaska 2001) (citation omitted).





      12    Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343,

351  (Alaska 1982); see also Estate of Lewis v. State, Commercial

Fisheries  Entry  Comm'n, 892 P.2d 175,  180  n.9  (Alaska  1995)

(holding  due  process  complaints not  raised  below  waived  on

appeal).





      13     Amerada Hess v. Alaska Pub. Utils. Comm'n, 711  P.2d

1170, 1181 n.22 (Alaska 1986).





     14    Id.