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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. David Nevers v. State or Alaska Department of Administraton Division of Motor Vehicles (10/28/2005) sp-5952

David Nevers v. State or Alaska Department of Administraton Division of Motor Vehicles (10/28/2005) sp-5952

     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

DAVID NEVERS, )
) Supreme Court No. S- 11399
Appellant, )
) Superior Court No.
v. ) 3PA-02-562 CI
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF )
ADMINISTRATION, DIVISION ) [No. 5952 - October 28, 2005]
OF MOTOR VEHICLES, )
)
Appellee. )
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly Cutler, Judge.

          Appearances: Verne Rupright and Tena  Foster,
          Rupright  &  Foster,  L.L.C.,  Wasilla,   for
          Appellant.  Richard W. Postma, Jr., Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          After  an  Alaska state trooper stopped  a  car  for  a
broken headlight on the Parks Highway, the driver fled the  scene
on  foot.   The  police  eventually  tracked  him  to  a  Wasilla
residence.   Officers  entered the home  without  a  warrant  and
arrested  the driver for driving while intoxicated.   The  driver
refused to submit to a chemical breath test, and the Division  of
Motor  Vehicles revoked his license for three years.  The  driver
appeals, challenging the warrantless entry and search of his home
as  violations  of  the  Fourth Amendment of  the  United  States
Constitution  and  article I, sections 14 and 22  of  the  Alaska
Constitution, and arguing that evidence obtained against him as a
result  of  the  search  must  be  suppressed  pursuant  to   the
exclusionary   rule.   The  hearing  officer   ruled   that   the
exclusionary   rule   does  not  apply  to   license   revocation
proceedings.  The superior court affirmed.  Because we hold  that
the   exclusionary  rule  does  not  apply  to  drivers   license
revocation proceedings, we affirm.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          At  about  7:20  p.m.  on March 2, 2002,  Alaska  State
Trooper  Nathan  Bucknall observed a red  Subaru  with  a  broken
headlight.   Trooper  Bucknall attempted  to  stop  the  vehicle,
giving  chase  for a quarter mile as the vehicle  swerved  across
both  lanes  of  traffic.  The Subaru then pulled over  onto  the
shoulder and drove for another one- to two-hundred feet, at which
point  the  driver stopped the car and fled on foot.  The  Subaru
was registered to David Nevers.
          Trooper  Bucknall found two male passengers inside  the
vehicle, Jon Fleming and Robert Kull.  The car smelled of alcohol
and  was  littered with beer cans and bottles.   Both  passengers
smelled  of  alcohol, had bloodshot and watery eyes,  and  swayed
when  talking  to the officer.  Upon questioning, Fleming  stated
that he did not know the driver, and Kull explained that they had
been  picked up while hitchhiking home.  Fleming appears to  have
been  less than truthful about not knowing the driver.  David  A.
Nevers,  who  the  police later identified  as  the  driver,  was
renting a room in Flemings house.
           Trooper Bucknall took Fleming into custody based on an
existing warrant for his arrest, while Trooper Doug Cook, who had
arrived  on  the scene within two to three minutes of  the  stop,
tracked  the  driver  by following his footprints  in  the  snow.
While following these tracks Trooper Cook found a three-day  non-
resident fishing license issued to David A. Nevers lying  in  the
snow.   After  following the footprints for one hour and  fifteen
minutes,  Trooper Cook reached the front parking lot  of  a  bar.
The  bartender said that a person matching the description of the
driver of the Subaru had come into the bar and called for a  cab,
saying  that  his  car  had broken down a few  miles  away.   The
individual had a gash across his nose and told the bartender that
he   was   from  New  Hampshire.   Trooper  Cook  conveyed   this
information to Trooper Bucknall.
          After   arresting  Fleming  on  the  existing  warrant,
Trooper  Bucknall  drove to the Wasilla  address  where  the  cab
company  had  dropped off the suspect.  At the  address,  Trooper
Bucknall observed tracks matching those of the driver of the  red
Subaru  leading to an open back door which led into  an  attached
garage.  Bucknall learned from a passerby that the house belonged
to  Jon  Fleming.   Trooper Bucknall, joined  by  Wasilla  police
officers,  knocked on the garage door and, when nobody  answered,
he  entered the garage and then knocked on the house door  inside
the  garage.   Receiving no response, Trooper  Bucknall  and  the
Wasilla  police  officers entered the residence and  conducted  a
room-to-room search.
          The officers found an individual asleep on the couch in
the  front  room  of the house.  Trooper Bucknall recognized  the
person as the driver of the red Subaru.  The individual presented
a  New Hampshire drivers license that identified him as David  A.
Nevers.  The officers also found fresh vomit in the bathroom  and
observed that Neverss boots were wet.
           Trooper Bucknall questioned Nevers, who denied that he
had  been driving that night but also said that his car  had  not
been  stolen.  Nevers said he had been drinking at home  and  had
placed  the empty beer cans with the garbage at the front of  the
house.  However, Trooper Bucknall reported that he found only one
empty alcohol container, an old beer can, on the front porch, and
that  the  garbage bags were old,  undisturbed and  covered  with
snow.
          Trooper  Bucknall gave Nevers a field sobriety test  at
roughly  9:40  p.m. Nevers had trouble standing and understanding
instructions.   Nevers passed the alphabet  test  but  failed  to
complete  the  numbers test, and submitted to a  portable  breath
test  at 9:48 p.m., roughly two hours and eighteen minutes  after
the  initial stop.  The portable test disclosed a breath  alcohol
concentration  of  0.158%.   Bucknall then  arrested  Nevers  for
driving  while intoxicated (DWI),1 and the officers  had  to  use
pepper-spray   on  Nevers  because  he  became  belligerent   and
combative,  threatening  to  kill the  officers.   Bucknall  took
Nevers  to the Alaska State Troopers Palmer Post for a Datamaster
breath alcohol concentration test, but Nevers refused to give  an
adequate breath sample2 at 10:37 p.m., which was only forty-three
minutes  from  expiration of the four-hour limit provided  by  AS
28.35.030(a)(2).  Bucknall then charged Nevers  with  refusal  to
provide  a  breath  sample and read him a  Notice  and  Order  of
Revocation.
     B.   Proceedings
          The Division of Motor Vehicles administratively revoked
Neverss license to drive.  Nevers sought administrative review of
the  departments  action  under AS  28.15.166.   Nevers  appeared
before hearing officer Rebecca Janik and argued that the evidence
seized at the house, namely his breath sample, should be excluded
because  [t]he  police  entered [Neverss] home  without  consent,
without  a  warrant,  there  were no exigent  circumstances,  and
interdicted him nearly two hours after they suspected he was  the
person  that  fled the vehicle by the side of the  road.   Nevers
argued  that  because warrantless entry into a  home  is  per  se
unreasonable,  the  search  was improper  absent  either  exigent
circumstances or some other exception to the warrant requirement.
Nevers  maintained  that because exigent  circumstances  did  not
exist  and  no  other  exception applied, the  evidence  must  be
suppressed.
          Relying  on AS 28.15.166(g), the hearing officer  ruled
that  the  administrative hearing was limited  to  two  principal
issues:  whether  the  arresting officer had  probable  cause  to
believe  that  Nevers was driving and whether  Nevers  refused  a
breath  test.   The  hearing  officer ruled  that  constitutional
issues could not be raised in an administrative hearing.  Because
the hearing officer found that the trooper had reasonable grounds
to  conclude that Nevers operated a motor vehicle while under the
influence,  and that he refused the breath test, she  found  that
the  divisions  decision  to suspend Neverss  license  should  be
affirmed.   Despite her ruling that constitutional issues  cannot
be  raised  at  an  administrative hearing, the  hearing  officer
nevertheless   made   alternative  findings   regarding   Neverss
constitutional  claims.   First,  she  held  that  Nevers  lacked
standing  to  raise the claim that the police entered  his  house
without  authority to do so because he was not  arrested  in  the
room  he  rented.  Second, she held that the police were  in  hot
pursuit  and  thus  the  entry and  search  fell  under  a  valid
exception  to  the warrant requirement.  Because Nevers  had  two
prior  DWI  convictions, the hearing officer revoked his  license
for three years.3

          Nevers appealed the decision to the superior court  and
renewed his constitutional arguments.  Relying on State v. Sears,4
the  court  held  that the exclusionary rule does  not  apply  to
license  revocation hearings except where police  conduct  shocks
the  conscience.  Finding that it appeared that the  officers  in
good  faith  acted  in investigating the incident  in  what  they
reasonably  believed  was a prudent and appropriate  manner,  the
superior court affirmed the hearing officers decision.
          Nevers appeals.
III.      STANDARD OF REVIEW
          We   review  license  revocation  hearings   under   AS
28.15.166(m),  which  provides that the  court  may  reverse  the
departments determination if the court finds that the  department
misinterpreted  the  law,  acted in an arbitrary  and  capricious
manner,  or  made a determination unsupported by the evidence  in
the  record.5   Where the superior court acts as an  intermediate
court  of  appeals, we independently review the hearing  officers
decision.6   For legal questions not involving agency  expertise,
we  apply the substitution of judgment standard.7  We also review
constitutional questions de novo,8 and will adopt the rule of law
that  is  most  persuasive  in light of  precedent,  reason,  and
policy.9
IV.  DISCUSSION
          The  Fourth Amendment Exclusionary Rule Is Inapplicable
          to License Revocation Hearings.
          
          Nevers maintains that evidence procured by the officers
warrantless  entry  and  search of the home  should  be  excluded
because  the search violated fundamental rights under the  United
States  and the Alaska Constitutions.  Although he does not  cite
specific constitutional provisions, we assume that he relies upon
the  Fourth  Amendment  to the United States  Constitution10  and
          article I, sections 1411 and 2212 of the Alaska Constitution.
          The  United  States Supreme Court has  long  held  that
absent exigent circumstances or some other exception, warrantless
police  searches  or  seizures are per se unreasonable.13   Thus,
evidence  obtained from an unconstitutional search or seizure  is
inadmissible and must be excluded.14  As the search  and  seizure
protections under the Alaska Constitution are broader than  those
under  the Federal Constitution,15 we base our decision  in  this
case on the Alaska Constitution.
          The   state   argues  that  Nevers  may  not  challenge
revocation  of  his license on Fourth Amendment  grounds  because
such claims are outside the scope of license revocation hearings.16
The state bases its argument on AS 28.15.166(g), which it claims
limited  the  scope  of revocation hearings to  two  issues:  (1)
whether the law enforcement officer had probable cause to believe
that  Nevers  was  driving  a  motor  vehicle  while  under   the
influence,  and (2) whether Nevers refused to take a statutorily-
authorized chemical test.17  It also relies upon our decision  in
State  v. Sears, where we held that the Alaska Constitution  does
not  require  the  exclusion  of illegally  secured  evidence  in
probation revocation hearings.18  However, we noted in Sears that
we  would apply the exclusionary rule in two situations.   First,
we  held that judicial integrity required application of the rule
where the police engaged in conduct that shocks the conscience.19
Second,  we  noted  that  if the police consciously  directed  an
unconstitutional search or arrest toward someone they knew was  a
probationer, we would apply the exclusionary rule because in such
circumstances  the police would have an incentive  to  engage  in
unlawful searches that required the rules tempering effect.20  The
state  maintains that license revocation hearings are  comparable
to  probation revocation proceedings, and therefore  argues  that
Sears  prevents  Nevers from raising the exclusionary  rule.   We
agree.21
          In this case, as in Sears, determining whether to apply
the  exclusionary rule requires balancing the costs  of  applying
the  rule  against  its  benefits.22  On the  cost  side  of  the
equation,  application  of  the  exclusionary  rule  to   license
revocation  hearings will in some cases frustrate  the  important
state interest in keeping drunk drivers off the road by excluding
pertinent  evidence.23   Moreover, enforcement  of  the  rule  in
license  revocation proceedings will significantly  increase  the
administrative  burden  of what is intended  to  be  an  informal
process;24  indeed, hearing officers in Alaska need not  even  be
lawyers.25  It can also be expected that applying the exclusionary
rule  to  license revocation hearings will result in  longer  and
more complicated hearings in many cases.
          When   measuring   the   benefits   of   applying   the
exclusionary  rule,  we  look mainly  to  its  ability  to  deter
unlawful police conduct.26  In drivers license revocation  cases,
as  in  Sears,  we do not believe that applying the  exclusionary
rule  for  search  and seizure violations would  add  significant
deterrence  because the police are already sufficiently  deterred
from   such  unlawful  conduct  by  the  applicability   of   the
exclusionary  rule  to all criminal cases that  may  result  from
          their investigations.27  Thus, because we believe that the
benefits  of extending the rule are marginal and that  the  costs
would  be substantial, we join the majority of jurisdictions  and
hold  that  the exclusionary rule is inapplicable to  search  and
seizure violations in administrative license revocation hearings.28
While  a minority of courts have reached the opposite conclusion,
we  decline to follow these cases because they involve  statutory
regimes  that differ from ours,29 assume without discussion  that
the exclusionary rule applies to license revocation hearings,30 or
reflect  a  different  judgment  as  to  the  exclusionary  rules
deterrent effect.31
          Although   we  conclude  that  the  exclusionary   rule
generally  does  not apply to license revocation proceedings,  we
maintain intact the exceptions set out in Sears: We may apply the
exclusionary   rule  to  police  misconduct  which   shocks   the
conscience, or is of a nature that calls for the judiciary, as  a
matter  of  judicial  integrity,  to  disassociate  itself   from
benefits  derivable  therefrom. . . .32  We  believe  that  these
exceptions,  when  combined  with the  deterrent  effect  already
provided  by  the exclusionary rule in criminal proceedings,  are
sufficient  to  protect  the  public and  deter  unlawful  police
activity.
          Nevers  argues  that this case falls under  the  second
exception  to  Sears   action consciously  directed  against  the
defendant  and relies on Joubert v. State.33  In Joubert the court
of  appeals  excluded illegally seized evidence  in  a  probation
hearing  because the search had been consciously directed  toward
the  probationer  and toward uncovering evidence  for  use  in  a
probation revocation proceeding.34  Given the probation  officers
involvement  in  the  search  (from  initiating  the  search   to
participating  in  it), the governments attempt  to  justify  the
illegal search under a condition of probation, and the fact  that
the only action taken by the government after discovering cocaine
was  to file a petition to revoke probation, the court of appeals
concluded  that the sole apparent purpose of the search conducted
.  .  .  was  to  find  evidence that Joubert  had  violated  the
conditions of his probation.35  These factors distinguish Joubert
from  Neverss situation.  In this case, the officer pulled Nevers
over for driving with a burnt-out headlight.  After seeing Nevers
flee from the scene on foot and after discovering the strong odor
of  alcohol  inside  the vehicle, along with  the  numerous  beer
containers, the officer could have reasonably suspected Nevers of
DWI  or  other  criminal  behavior, and accordingly  initiated  a
criminal  investigation   that is, an investigation  designed  to
yield  evidence for a criminal proceeding.  While the  search  of
the  house in which Nevers was renting a room may have ultimately
been  performed  unlawfully  an issue upon which  we  express  no
opinion36   the  record shows that it was done pursuant  to  this
criminal investigation, in contrast to Joubert where it was clear
that the officers primary motive was to seize evidence for use in
a  probation  hearing.  Nevers must do more than simply  cite  to
Joubert;  he must show that the officers in this case,  like  the
officers  in Joubert, acted with the purpose of seizing  evidence
for  use  in a civil hearing.  Because he has not even made  this
          suggestion, his argument must fail.  Simple awareness of the fact
that a suspect may be subject to a civil proceeding is not enough
to  require  application  of  the  exclusionary  rule.   Allowing
defendants  to invoke the exclusionary rule whenever  an  officer
may  have  known that the suspect could be subject to some  civil
proceeding would turn the phrase consciously directed  into  mere
surplusage.  We therefore reject Neverss argument that Joubert is
persuasive in this case.
          Nevers  also relies on Whisenhunt v. State,  Department
of  Public Safety,37 where we applied the exclusionary rule in  a
civil  license  revocation proceeding to exclude  a  breathalyzer
test secured in violation of the right to counsel.38  Noting that
drivers have an important property interest in their licenses and
that  in  many cases the license revocation is the most important
and  long-lasting sanction imposed on the defendant, we  rejected
the  states  argument  that Sears precluded  application  of  the
exclusionary rule to license revocation hearings where the  right
to  counsel  was violated.39  However, Whisenhunt is  part  of  a
series  of  cases  where  we  required  that  license  revocation
hearings  meet standards of procedural fairness; these  decisions
were  designed  to  ensure  that drivers  be  accorded  fair  and
meaningful hearings.  Accordingly, we have held that due  process
forbids  the  state  from  denying drivers  in-person  revocation
hearings when credibility is at issue,40 that it requires that the
state preserve sobriety test videotapes41 and breath test samples,42
and  that  it  requires hearing officers to determine  whether  a
defendant  was  actually  driving  the  motor  vehicle.43   These
decisions  involved  the  procedural  protections  necessary   to
preserve defendants right to a fair hearing.44  Violations of the
Fourth  Amendment,  on  the  other hand,  do  not  undermine  the
procedural  fairness  of  the hearing.  In  addition,  while  the
violation of the right to counsel or the denial of an opportunity
to  challenge  evidence may undermine the fairness of  a  hearing
because  such  safeguards help to ensure the reliability  of  the
evidence,  application of the exclusionary rule  for  search  and
seizure  violations has the opposite effect because it is  nearly
always  the  case that such evidence is relevant and  reliable.45
The  driving  privilege  is  important  enough  to  require  that
individuals  facing  license revocation  enjoy  basic  procedural
protections,  but  it  does not follow that defendants  are  also
entitled  to application of the exclusionary rule for  violations
of the Fourth Amendment or Alaskas search and seizure provisions.
Given  that  the exclusionary rule serves a unique purpose,  that
is,  deterring police misconduct, it is distinguishable from  the
procedural protections that we upheld in our other cases.
          In  sum,  application  of  the exclusionary  rule  will
hamper legitimate efforts to keep drunk drivers off the roads and
complicate the administration of license revocations while adding
minimal  deterrence  to  unlawful police  action.   In  addition,
consideration  of evidence obtained in violation  of  the  Fourth
Amendment   does  not  undermine  the  procedural   fairness   of
revocation  hearings.  For these reasons,  we affirm the  hearing
officers determination that the exclusionary rule is inapplicable
to license revocation proceedings.


V.   CONCLUSION
          Because the exclusionary rule does not apply to license
revocation  proceedings  (in  the  absence  of  shocking   police
misconduct  in  the  obtaining  of  evidence  or  police   action
consciously  directed  at  a probationer),  the  hearing  officer
correctly  admitted  the  evidence of  Neverss  intoxication  and
refusal to submit to the breath test.  Accordingly, we AFFIRM the
revocation of his drivers license.

_______________________________
     1    AS 28.35.030(a).

     2    AS 28.35.032(a).

     3      AS   28.15.165(d)   incorporates   AS   28.15.181(c)s
requirement  that  a third DWI offense results  in  a  three-year
minimum license revocation.

     4    553 P.2d 907 (Alaska 1976).
          
     5     Saltz  v.  State, Dept of Pub. Safety, 942 P.2d  1151,
1152  n.2  (Alaska 1997) (citing Miller v. State,  Dept  of  Pub.
Safety, 761 P.2d 117, 118 n.2 (Alaska 1988)).

     6     Pasco  v.  State, Dept of Admin.,  45  P.3d  325,  326
(Alaska 2002).

     7    Id.

     8    Id.

     9    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     10    The Fourth Amendment provides:

          The right of the people to be secure in their
          persons, houses, papers, and effects, against
          unreasonable searches and seizures, shall not
          be violated, and no Warrants shall issue, but
          upon  probable cause, supported  by  Oath  or
          affirmation, and particularly describing  the
          place  to  be  searched, and the  persons  or
          things to be seized.
          
     11    Article I, section 14 provides:

          The right of the people to be secure in their
          persons,  houses and other property,  papers,
          and  effects,  against unreasonable  searches
          and  seizures,  shall not  be  violated.   No
          warrants   shall  issue,  but  upon  probable
          cause, supported by oath or affirmation,  and
          particularly  describing  the  place  to   be
          searched,  and the persons or  things  to  be
          seized.
          
This  right is substantially the same as the Fourth Amendment  to
the  federal constitution, but has broader coverage  in  that  it
also  protects other property.  Schultz v. State, 593  P.2d  640,
642  n.5  (Alaska  1979); Ellison v. State,  383  P.2d  716,  718
(Alaska 1963).

     12    Article I, section 22 provides that [t]he right of the
people  to privacy is recognized and shall not be infringed.   We
have   recognized  that  where  a  search  is   alleged   to   be
unconstitutional, section 14s standards for a proper  search  and
seizure   are  inexorably  entwined  with  section  22s   privacy
protections.    Anchorage   Police   Dept   Employees   Assn   v.
Municipality  of  Anchorage, 24 P.3d 547,  550-51  (Alaska  2001)
(citing  Woods  & Rohde, Inc. v. State, Dept of Labor,  565  P.2d
138, 150-51 (Alaska 1977)).

     13     See,  e.g., Illinois v. Rodriguez, 497 U.S. 177,  191
(1990)  (a  search or seizure carried out on a suspects  premises
without  a  warrant is per se unreasonable unless the police  can
show  that  it  falls within one of a carefully  defined  set  of
exceptions) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474
(1971)); Payton v. New York, 445 U.S. 573, 589-90 (1980) ( at the
very  core of the Fourth Amendment stands the right of a  man  to
retreat  into  his  own home and there be free from  unreasonable
governmental intrusion. . . . Absent exigent circumstances,  that
threshold  may  not  reasonably be crossed  without  a  warrant.)
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

     14    See, e.g., Ellison, 383 P.2d at 718 (exclusionary rule
applicable  to state courts) (discussing Mapp v. Ohio,  367  U.S.
643, 654-55 (1961)).

     15    Anchorage Police Dept Employees Assn, 24 P.3d at 550.

     16    This is a question of first impression.  In prior cases
we  did  not  consider  whether the exclusionary  rule  could  be
applied  for search and seizure violations in license  revocation
hearings.  See Fraiman v. State, Dept of Admin., 49 P.3d 241, 244
(Alaska  2002); Miller v. State, Dept of Public Safety, 761  P.2d
117  (Alaska  1988).  Because we believe a decision will  provide
guidance to litigants and hearing officers on a recurring  issue,
we now reach this issue.

     17    AS 28.15.166(g) states in relevant part:

          The  hearing  for  review of  action  by  the
          department  under  AS  28.15.165   shall   be
          limited  to  the  issues of whether  the  law
          enforcement  officer had  probable  cause  to
          believe that the person was operating a motor
          vehicle or commercial motor vehicle that  was
          involved  in  an  accident causing  death  or
          serious  physical injury to another, or  that
          the  person  was  operating a motor  vehicle,
          commercial  motor vehicle, or aircraft  while
          under the influence of an alcoholic beverage,
          inhalant,   or   controlled   substance    in
          violation of AS 28.33.030 or AS 28.35.030 and
          whether
               (1)  the person refused to submit  to  a
          chemical    test    authorized    under    AS
          28.33.031(a) or AS 28.35.031(a) or (g)  after
          being  advised that refusal would  result  in
          disqualification    or    the     suspension,
          revocation, or denial of the persons license,
          and that the refusal is a misdemeanor;
               (2) the chemical test administered under
          AS  28.33.031(a)  or AS 28.35.031(a)  or  (g)
          produced   a   result   described    in    AS
          28.35.030(a)(2); or
               (3) the chemical     test
                         administered
                         under        AS
                         28.33.031(a)
                         produced      a
                         result
                         described in AS
                         28.33.030(a)(2)
                         .
                         
     18     State  v. Sears, 553 P.2d 907, 912-14 (Alaska  1976).
Sears  also held that former Criminal Rule 26(g), which  governed
the  exclusionary rule in criminal proceedings, was  inapplicable
to  probation  revocation proceedings.  Id. at 909-11.   Evidence
Rule  412  replaced former Criminal Rule 26(g) by  Supreme  Court
Order  on  August 1, 1979, the day the Alaska Rules  of  Evidence
went into effect.  Harker v. State, 663 P.2d 932, 934 n.3 (Alaska
1983).   Evidence Rule 412 is similarly inapplicable to  informal
license revocation hearings, where the rules of evidence  do  not
apply.   AS 28.05.141(a); Glascock v. State, Dept of Pub. Safety,
890 P.2d 65, 67 (Alaska 1995).

     19    Sears, 553 P.2d at 912-14.

     20    Id. at 914.

     21     We recognize that there may be two exceptions to  our
conclusion that the exclusionary rule is inapplicable in  license
revocation   proceedings.   First,  where  a   Fourth   Amendment
violation  stems from a lack of probable cause for a DWI  arrest,
exclusion  may  well  be mandated because probable  cause  is  an
affirmative statutory element of the offense of refusal and is an
affirmative   element  for  proof  in  the   license   revocation
proceeding.  Second, since the implied consent statutes  prohibit
further  blood or breath tests in the event of a refusal  (except
in  certain specified situations) a search for blood evidence  in
direct  violation of these statutory prohibitions would  probably
require   exclusion  of  the  test  results   in   a   subsequent
administrative license revocation proceeding that  was  based  on
the result of the impermissible blood test. See cases infra n.29.

     22    Sears, 553 P.d at 912; see also United States v. Janis,
428  U.S.  433,  453-54 (1976) (we conclude that  exclusion  from
federal  civil  proceedings of evidence unlawfully  seized  by  a
state  criminal enforcement officer has not been shown to have  a
sufficient  likelihood  of deterring the  conduct  of  the  state
police  so  that it outweighs the societal costs imposed  by  the
exclusion.).

     23     See Tornabene v. Bonine ex rel. Arizona Highway Dept,
54 P.3d 355, 362
(Ariz.  App.  2002); Chase v. Neth, 697 N.W.2d 675, 684-85  (Neb.
2005).

     24     See Powell v. Secy of State, 614 A.2d 1303, 1307 (Me.
1992)  (application  of  exclusionary  rule  would  unnecessarily
complicate and burden administrative proceeding); Riche  v.  Dir.
of Revenue, 987 S.W.2d 331, 334 (Mo. 1999).

     25    AS 28.05.141(a) states in relevant part:

          Hearings  must  be  informal,  and  technical
          rules  of evidence do not apply.  .  .  .   A
          hearing officer need not be an attorney,  but
          must   be   impartial  and   may   not   have
          participated  in the decision that  is  under
          review.
          
     26     Sears, 553 P.2d at 912.  See also Janis, 428 U.S.  at
454  (the prime purpose of the rule, if not the sole one,  is  to
deter future unlawful police conduct. ) (quoting United States v.
Calandra, 414 U.S. 338, 347 (1974)).

     27     See Tornabene, 54 P.3d at 365-66 ([I]t strikes us  as
extremely  unlikely that officers would [conduct  illegal  stops]
merely  with  the hope of obtaining license suspensions,  knowing
that  evidence  of intoxication obtained from such  an  encounter
would  be  inadmissible in any criminal DUI prosecution and  that
clearly  impermissible police conduct could subject  officers  to
civil liability.  See 42 U.S.C.  1983.); see also Janis, 428 U.S.
at  448  (extending exclusionary rule to civil tax proceeding  is
unnecessary   because  police  are  sufficiently  deterred   from
unlawful  conduct  by  exclusionary rule  in  state  and  federal
criminal proceedings).

     28     See Chase, 697 N.W.2d at 683-84 (noting that majority
of courts to consider issue have not applied exclusionary rule to
license  revocation  hearings, adopting  majority  position,  and
listing  cases).   Accord Tornabene, 54 P.3d  355;   Fishbein  v.
Kozlowski,  743  A.2d 1110 (Conn. 1999); Powell, 614  A.2d  1303;
Riche,  987  S.W.2d  331;  Jacobs v. Dir.,  N.H.  Div.  of  Motor
Vehicles,  823  A.2d  752 (N.H. 2003).  See generally  Thomas  M.
Fleming,  Annotation, Admissibility, in Motor  Vehicle  Licensing
Suspension  Proceedings, of Evidence Obtained by Unlawful  Search
and Seizure, 23 A.L.R. 5th 108 (1994).

     29      People  v. Krueger, 567 N.E.2d 717 (Ill. App.  1991)
(statutory language required application of exclusionary rule  in
license  revocation proceeding); Pooler v. Motor  Vehicles  Div.,
755 P.2d 701 (Or. 1988) (same).

     30     Olson  v.  Commr  of  Pub.  Safety,  371  N.W.2d  552
(Minn.1985).

     31     State v. Lussier, 757 A.2d 1017 (Vt. 2000).  We  also
note  that,  contrary to the situation in Alaska,  the  venue  in
Vermont  for  a civil drivers license suspension hearing  is  the
district court.  Id. at 1018.

     32    Sears, 553 P.2d at 914.

     33    926 P.2d 1191 (Alaska App. 1996).

     34    Id. at 1195.

     35    Id. at 1192, 1195.

     36     Accordingly,  we express no opinion  on  the  hearing
officers  conclusions that Nevers lacked standing to  attack  the
search  and  that  the search was justified by  the  hot  pursuit
exception to the warrant requirement.

     37    746 P.2d 1298 (Alaska 1987).

     38    Id. at 1300.

     39    Id. at 1299 & n.6.

     40    Whitesides v. State, Dept of Pub. Safety, 20 P.3d 1130
(Alaska 2001).

     41     Thorne  v. State, Dept of Pub. Safety, 774 P.2d  1326
(Alaska 1989).

     42     Champion v. State, Dept of Pub. Safety, 721 P.2d  131
(Alaska 1986).

     43     Javed  v.  State, Dept of Pub. Safety, 921  P.2d  620
(Alaska 1996).

     44      See   Thorne,   774  P.2d  at  1331  (characterizing
protections  recognized in Thorne, Whisenhunt,  and  Champion  as
procedural safeguards).

     45    United States v. Janis, 428 U.S. 433, 447 (1976).