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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alvarez v. State, Dept. of Administration, Division of Motor Vehicles (8/13/2010) sp-6500

Alvarez v. State, Dept. of Administration, Division of Motor Vehicles (8/13/2010) sp-6500

     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,
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            THE SUPREME COURT OF THE STATE OF ALASKA

SONJA ALVAREZ, )
) Supreme Court No. S- 12768
Appellant, )
) Superior Court No.
v. ) 1KE-04-00115 CI
)
STATE OF ALASKA, )
DEPARTMENT OF )
ADMINISTRATION, DIVISION )
OF MOTOR VEHICLES, ) O P I N I O N
)
Appellee. ) No. 6500 - August 13, 2010
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Ketchikan, Michael A. Thompson, Judge.

          Appearances:    Sonja   Alvarez,   pro    se,
          Ketchikan,  Appellant.   Krista  S.  Stearns,
          Assistant  Attorney General,  Anchorage,  and
          Talis  J. Colberg, Attorney General,  Juneau,
          for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          A  driver appeals the 90-day suspension of her  drivers
license  two and a half years after her arrest for drunk driving.
The  delay  was almost entirely due to the fact that the  officer
who  arrested her was deployed to Iraq with the military  shortly
after  her arrest, and the suspension hearing was continued until
the  state  learned  of  his return.  The driver  challenges  the
suspension   on   constitutional,  procedural,  and   evidentiary
grounds.   Because  the  delay between  the  suspension  and  the
hearing  was  neither a denial of due process nor  arbitrary  and
capricious, because none of the procedural issues raised  by  the
driver  involves  error on the part of the hearing  officer,  and
because  it  was not error to fail to consider the  drivers  long
period of good driving in the interim, we affirm.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  September 28, 2003, Ketchikan Police Officer  Brian
Perez arrested Sonja Alvarez for drunk driving.  A citizen called
the police after observing what he reported as an erratic driver.
Perez  was nearby and began to follow the car identified  by  the
caller.   Perez observed the driver fail to signal at a turn  and
fail  to  stop at a stop sign.  Perez stopped Alvarez and noticed
that she had bloodshot eyes, a moderate odor of alcohol, and  was
unsteady  on  her feet.  Alvarez agreed to field sobriety  tests.
Perez  reported  that she had eye nystagmus1 and  was  unable  to
perform  the  walk  and turn test.  Perez asked  her  to  take  a
portable breath test.  She refused.  Perez then arrested  Alvarez
and took her to the police station.
          At  the  police station, Perez put a video tape in  the
recorder,  but the device recorded only audio for the first  half
of  the  tape.  It recorded both audio and video for  the  second
half.   Alvarez agreed to take a breath test, but did not produce
a readout until the fifth try.  Alvarez recorded a breath alcohol
concentration  of  .091 percent.  It appears that  at  least  one
other  officer  was in the room with Perez to help  him  use  the
breathalyzer.

     B.   Proceedings
          After  Alvarezs arrest and breathalyzer  test  results,
Perez  issued an order revoking her license and giving her notice
that  the  revocation would be effective in  seven  days  in  the
absence of a request for an administrative hearing.  Alvarez  was
subsequently  charged  with driving  under  the  influence.   She
timely  requested  a  hearing, and  as  a  result  was  issued  a
temporary license.  The hearing was scheduled for March 22, 2004,
almost six months later.  In the meantime, Perez was deployed  to
Iraq  with the military, and the charges against Alvarez  driving
under  the  influence and failure to stop at sign   were  dropped
because  Perez was expected to be unavailable for  at  least  one
year.  On February 26, 2004, Alvarez wrote to the hearing officer
requesting subpoenas for the Ketchikan Public Safety Director and
the  Records Custodian at the Alaska State Highway Department  in
Ketchikan.  In the same letter, Alvarez also asked her  if  Perez
would   be  subpoenaed.   The  hearing  officer  denied  Alvarezs
requests for subpoenas, and informed her that she did not  intend
to subpoena Perez.
          Shortly  before  the  hearing, Alvarez  petitioned  the
superior court to stay the administrative hearing, asking  it  to
rule  that a hearing without Perez present would violate her  due
process rights.2  The superior court denied the petition,  noting
          that there could be only two outcomes of the hearing: Either
Alvarez  would  prevail or the hearing would be  continued  until
Perezs  return  from Iraq.  The court concluded that  neither  of
those two results would violate due process.
          The  first  hearing  took  place  on  March  22,  2004.
Alvarez was present, and she called a witness to testify that she
was  sober the night she was arrested.  She also testified on her
own  behalf.  The hearing officer decided to continue the hearing
until  Perezs  return  from  Iraq.  The  hearing  was  ultimately
rescheduled  for  March 10, 2006, almost two  years  later,  once
Perez had returned.
          On March 1, 2006, just nine days before the hearing, an
attorney  entered  an  appearance  on  behalf  of  Alvarez.    He
immediately requested a continuance to review the evidence.   The
next day the hearing officer denied the request.  On March 9, one
day before the hearing, counsel for Alvarez requested the hearing
officer  to  subpoena the evidence custodian  for  the  Ketchikan
Police  Department, and the hearing officer denied  his  request.
The hearing went ahead telephonically on March 10, but Perez, who
was   supposed  to  call  in,  did  not.   The  hearing   officer
rescheduled the hearing for April 27.
          Perez  appeared telephonically at the April 27 hearing.
The  hearing officer had only two questions for Perez.3   Alvarez
then  thoroughly  cross-examined Perez, whose  memory  of  events
varied.   During  the  hearing,  the  hearing  officer  prevented
Alvarez from asking Perez questions concerning whether Perez  had
reasonable  suspicion  to  stop  Alvarez.   The  hearing  officer
reasoned  that  the exclusionary rule does not apply  to  license
suspension  proceedings, and therefore it was irrelevant  whether
or not Perez had reasonable suspicion to stop Alvarez.
          The  hearing officer suspended Alvarezs license for  90
days.  Alvarez appealed to the superior court, which affirmed the
hearing officers decision.  Alvarez appeals.



III. STANDARD OF REVIEW
          We   laid  out  the  standard  of  review  for  license
suspension   proceedings  in  Nevers  v.  State,  Department   of
Administration, Division of Motor Vehicles4:
          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.  Where the superior court acts as
          an   intermediate  court   of   appeals,   we
          independently  review  the  hearing  officers
          decision.   For legal questions not involving
          agency  expertise, we apply the  substitution
          of   judgment   standard.   We  also   review
          constitutional  questions de novo,  and  will
          adopt the rule of law that is most persuasive
          in light of precedent, reason, and policy.[5]
We   review   an  administrative  hearing  officers   evidentiary
decisions for abuse of discretion.6
IV.  DISCUSSION
     A.   The  31-Month  Delay Before The Hearing Was  Neither  A
          Denial Of Due Process Nor Arbitrary And Capricious.
          Alvarez  argues  that  we  should  reverse  the  90-day
suspension  of  her drivers license because of the delay  between
her arrest and the suspension.7  Alvarez argues primarily that  a
license suspension hearing should take place within speedy  trial
limits  of the drunk driving arrest.  She bases this argument  on
our  cases  holding that due process requires that certain  other
procedural  safeguards  apply to license suspensions.   She  also
argues that, regardless of speedy trial limits, the delay in this
case  was  arbitrary and capricious.  We consider each  of  these
arguments in turn.
          1.   Speedy  trial  limits  do  not  apply  to  license
               suspension proceedings.
          Alaska  Statute  28.15.165 requires suspension  of  the
drivers  license  of any person who drives with a  blood  alcohol
content  of  .08 percent, or who refuses to take a blood  alcohol
content  chemical test. The driver may request an  administrative
hearing within seven days; a driver who does so will be issued  a
temporary license until the hearing.8  Although we have addressed
these license suspension proceedings several times, we have never
directly addressed whether the speedy trial rule applies to them.
We  indirectly discussed the issue when we summarily determine[d]
that an eight-month delay between a drunk driving arrest and  the
license  suspension  hearing did not violate  due  process.9   We
wrote:
          Concerning his delay claim, Whitesides likens
          this  case  to  United States  v.  $8,850  in
          United  States Currency, 461 U.S. 555 (1983),
          in which the United States Supreme Court held
          that  delay  in initiating a civil forfeiture
          case may violate due process and suggested  a
          test   similar  to  that  used  to  determine
          whether  an accuseds right to a speedy  trial
          in a criminal case is violated. But this case
          is  different  from  civil  forfeiture  cases
          because  Whitesides was not deprived  of  his
          right  to drive pending the hearing,  whereas
          in  civil forfeiture cases the property to be
          forfeited has typically been removed from the
          possession and use of the respondent  pending
          the hearing.[10]
Thus,   we   have   already  distinguished   license   suspension
proceedings from civil forfeiture proceedings in which  a  speedy
trial-type rule applies.  We now hold that speedy trial limits do
not attach to drivers license suspension proceedings for a number
of  reasons,  including  that the driver is  issued  a  temporary
license until the revocation proceeding occurs.  We consider  all
of these reasons now.
          First,  both the Alaska and United States Constitutions
grant  the  right to a speedy trial only with regard to  criminal
proceedings,11  and  a license revocation  proceeding  is  not  a
criminal  proceeding.  We have held that license  suspension  for
drunk driving is not criminal punishment.12  Furthermore, only one
of  the three identified policy reasons for the speedy trial rule
directly applies in license suspension proceedings.  We have said
that  the  purposes  behind the speedy trial  rule  are:  (1)  to
prevent  harming  the defendant by a weakening  of  his  case  as
evidence and memories of witnesses grow stale with the passage of
time; (2) to prevent prolonged pretrial incarceration; and (3) to
limit  the  infliction  of anxiety upon the  accused  because  of
longstanding charges.13
          Although the prevention of faded memories purpose might
apply  to some license suspension proceedings, the remaining  two
purposes  do  not.   The second purpose does  not  apply  because
licensees   are  issued  temporary  licenses  pending  suspension
hearings,14 and obviously licensees are not incarcerated.  As  to
the  third  purpose,  loss  of  a drivers  license   is  not  the
equivalent  of  criminal punishment in its effect  on  a  persons
professional  and personal life.  Finally, the exclusionary  rule
does not apply.15
          Because  the first purpose is outweighed by the  second
and  third, we decline to extend the constitutional speedy  trial
right,  not  explicitly  applicable to civil  cases,  to  license
suspension proceedings.
          2.   The delay did not violate due process.
          Although  we  conclude that the right to  speedy  trial
does not apply, we must still determine whether the delay in this
case  violated  due process.  To do so, we apply the  Mathews  v.
Eldridge framework to evaluate whether administrative proceedings
satisfy due process.16  We consider (1) the private interest that
the   official   action  affects,  (2)  the  risk  of   erroneous
deprivation of that interest through the procedures used and  the
probable  value, if any, of additional safeguards,  and  (3)  the
governments   interest,  including  fiscal   and   administrative
burdens, in implementing additional safeguards.17
          As to the first factor, we have previously held that  a
drivers license is an important property interest.18  As  to  the
second,  we conclude that the delay in this case did not  notably
increase  the risk of erroneous deprivation.  Moreover, any  such
risk was mitigated by the grant of a temporary license until  the
hearing.   As  to  the third factor, the government  has  a  high
interest in removing unsafe drivers from the road, and conducting
license suspension proceedings without delay increases the States
fiscal and administrative burdens and may prevent the State  from
suspending the licenses of some unfit drivers.19  We conclude that
these factors weigh against Alvarezs claim.
          Finally,  we have never held that administrative  delay
alone,  without prejudice, violates due process.20  Any prejudice
to  Alvarez was slight.  First, she was issued a temporary permit
to  drive  throughout the delay.  And second, Perez had  made  an
audio  tape of the original encounter, an audio and partial video
tape  of  the  encounter at the station, and he had recorded  the
          incident in his police report.  This substantially mitigated any
prejudice due to Perezs faded memory.
          3.   Alvarezs  claim  that  the hearing  officer  acted
               arbitrarily and capriciously is waived.
          Alvarez   argues   that  the  hearing   officer   acted
arbitrarily  and capriciously in failing to get Perezs  testimony
by telephone while he was in Iraq.21  But Alvarez did not  request
that  Perezs testimony be taken telephonically from Iraq  at  the
time.   Therefore,  we conclude Alvarez waived this  argument  by
failing to make it in the proceedings below.
     B.   The  Hearing  Officer  Did Not  Err  In  Taking  Perezs
          Testimony  Telephonically.
          Relying primarily on Whitesides v. State, Department of
Public Safety, Division of Motor Vehicles,22 Alvarez argues  that
taking Perezs testimony telephonically violated her right to  due
process.  The State responds that Whitesides only holds that  due
process  requires  an in-person hearing for  the  licensee  whose
credibility  is at issue, not for other witnesses.  We  adopt  an
intermediate  position: An in-person hearing is  required  for  a
witness whose credibility is at issue.
          1.   Whitesides requires in-person testimony only of  a
               witness whose credibility is at issue.
          Alaska  Statute  28.15.166(e)  states  that  a  license
suspension  hearing must be held by telephone unless the  hearing
officer  finds  that  a  telephonic hearing  would  substantially
prejudice  the  rights of the person involved in the  hearing  or
that an in-person hearing is necessary to decide the issues to be
presented  in  the  hearing.  In Whitesides, we interpreted  that
statute  to  require an in-person hearing at  the  request  of  a
licensee  whose  credibility is at issue.23  We reasoned  that  a
telephonic  hearing  in  those circumstances  would  violate  due
process.
          But in this case, Officer Perezs credibility was not in
material dispute.  The license revocation hearing was limited  to
two  questions:  Did Officer Perez have probable cause to believe
that  Alvarez was operating her vehicle while under the influence
of  alcohol,  and did Alvarez fail a breath alcohol concentration
test?24  There was no real dispute that Alvarez failed the breath
alcohol  concentration test after her arrest,  so  the  contested
issue  at  the revocation hearing was whether Officer  Perez  had
probable cause to believe that Alvarez was operating her  vehicle
while  under the influence.  But on the first day of the  hearing
Alvarez  conceded six key observations that were noted in Officer
Perezs report.  These observations demonstrated probable cause as
a matter of law.
          Officer   Perez  noted  Alvarez  was  driving;  Alvarez
admitted  she was operating a car.  Officer Perez noted the  odor
of  alcohol; Alvarez explained this by testifying that she had  a
couple  of  glasses of wine at dinner and that she  had  admitted
this  fact  to  Officer  Perez.   Officer  Perez  noted  Alvarezs
bloodshot  and watery eyes;  Alvarez explained this by testifying
that  she had just been tending a barbecue.  Officer Perez  noted
Alvarez  failed  the eye nystagmus field sobriety  test;  Alvarez
explained this by testifying that she had eye problems.   Officer
          Perez noted Alvarez failed the walk-and-turn field sobriety test;
Alvarez explained this by testifying that [Officer Perez] ask[ed]
me to do [nine] steps.  I did [thirteen].  Finally, Officer Perez
noted  that  Alvarez  was  swaying.  Alvarez  explained  this  by
testifying  that  she was standing on a steep  street  in  4-inch
heel[s].
          Alvarezs  explanations for Officer Perezs  observations
did   not  cast  doubt  on  Officer  Perezs  credibility.    More
importantly, Alvarezs explanations did not go to the heart of the
matter:  The six observations that Alvarez conceded lead  to  the
inescapable conclusion that Officer Perez had probable  cause  to
arrest her for driving under the influence.25
          Because  Officer Perezs credibility was not in material
dispute,  we hold that Whitesides does not lead to the conclusion
that  Officer  Perezs telephonic testimony violated Alvarezs  due
process rights.
          2.   Taking  Perezs  testimony telephonically  was  not
               arbitrary and capricious.
          Alvarez  asserts, without authority, that the  decision
to  take Officer Perez testimony telephonically when he was  back
and  could testify in person was arbitrary and capricious as well
as  a  misinterpretation of the law.  The law is to the contrary.
Alaska  Statute  28.15.166(e) provides that a license  suspension
hearing  must  be  held by telephone unless the  hearing  officer
finds that a telephonic hearing would substantially prejudice the
rights of the person involved in the hearing or that an in-person
hearing is necessary to decide the issues to be presented in  the
hearing.   Thus,  the  law  presumes that  the  hearing  will  be
telephonic  unless  the  hearing  officer  finds  that  in-person
testimony  is necessary.  The hearing officer here did not  abuse
her  discretion under the statute.  The decision, founded  as  it
was on statute, was not arbitrary and capricious.
     C.   The  Hearing  Officer Did Not Err In  Denying  Alvarezs
          Requests For Subpoenas.
          Alvarez  argues  that  the  hearing  officer  erred  in
refusing  to  subpoena the Ketchikan Public Safety Director,  the
records  custodian  for  the Alaska State Highway  Department  in
Ketchikan,  and  the evidence custodian for the Ketchikan  Police
Department.   Alaska  Statute  28.15.166(f)(4)  gives  a  hearing
officer  authority  to issue subpoenas.  The  statute  places  no
limitations   on  that  authority.   We  review  the  evidentiary
decisions  of  a lower court, or in this case a hearing  officer,
for  abuse of discretion.26  The hearing officer refused to issue
the  subpoena  for the Ketchikan Public Safety  Director  on  the
grounds that the information Alvarez wanted could be obtained  by
written discovery.  She refused to subpoena the records custodian
of  the  Alaska State Highway Department on the grounds that  the
custodians  testimony would be irrelevant to the limited  inquiry
of  the  license suspension hearing.  The record does not reflect
why  the hearing officer refused to subpoena the Ketchikan Police
Department evidence custodian.  But as the request was  made  one
day before the scheduled hearing, Alvarez had been instructed  to
request  subpoenas at least ten days before a  hearing,  and  the
hearing  officer had already denied her an extension of  time  to
          obtain last-minute discovery, it appears that she refused to
issue the subpoena on the grounds that it was not timely.
          The  hearing  officer  had  discretion  to  deny  these
requests  for  subpoenas.   Alaska Statute 28.15.166(f)  and  (g)
explicitly limit the hearing to evidence relevant to the  license
suspension.27  A hearing officer has discretion to refuse to issue
subpoenas that the hearing officer concludes would generate  only
irrelevant and cumulative evidence.28
          The hearing officers reasons for refusing the subpoenas
are  more  than adequately supported in the record.   First,  the
subpoena  request the day before the hearing was  untimely.   The
hearing  notice  clearly  stated that the  hearing  officer  must
receive  all  subpoena  requests at least  ten  days  before  the
hearing.   Besides  being untimely, the subpoena  request  sought
irrelevant  testimony.   For example, Alvarez wished to  subpoena
the  police  evidence  custodian to  testify  regarding  Alvarezs
spoilation  argument, which apparently refers to the  failure  of
the video camera in the station to record video for the full time
it  was running.  But it is unclear how this supports any of  her
defenses as she never alleges that anything relevant was on  that
tape.29   Evidence that the highway records custodian could  have
presented  concerning  the  condition  of  the  roadway  was  not
relevant  to  a  hearing devoted to determining  if  Alvarez  was
driving and was under the influence.  Likewise, Alvarez does  not
show that the public safety director had evidence relevant to the
limited scope of the hearing.
     D.   The  Hearing  Officer  Did  Not  Err  In  Limiting  The
          Evidence.
          Alvarez  argues  that  the  superior  court  erred   in
limiting  the inquiry of the hearing to the statutory  issues  of
whether  Perez  had  probable cause to arrest Alvarez  for  drunk
driving  and whether Alvarez refused or failed the breath test.30
Alvarez  points to only one incident in which the hearing officer
limited   the  evidence.   This  was  when  the  hearing  officer
prevented  Alvarez  from  cross-examining  Perez  about   details
leading up to the initial stop, reasoning that whether Perez  had
reasonable  suspicion  to  stop her  is  not  relevant  under  AS
28.15.166(g).    The   hearing  officer  reasoned   that   Perezs
observations  before  the  traffic stop  were  relevant  only  to
whether  Perez had reasonable suspicion to pull Alvarez over  and
conduct  sobriety tests  an inquiry that is irrelevant under  our
case  law  holding that the exclusionary rule does not  apply  to
license  suspension proceedings.  The hearing officer  determined
that  only  Perezs observations after pulling Alvarez  over  were
relevant  to  the  statutory inquiry whether Perez  had  probable
cause to arrest Alvarez for driving while intoxicated.
          The hearing officer was correct:  We have held that the
exclusionary rule does not apply to license suspension hearings.31
Therefore whether or not Perez had reasonable suspicion  to  stop
Alvarez is irrelevant in a license suspension proceeding, and the
hearing  officer  did not err in excluding the evidence.   Alaska
Statute 28.15.166(g) provides that the hearing
          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 . . . while under the influence of an
          alcoholic beverage . . . and whether (1)  the
          person   refused  to  submit  to  a  chemical
          test . . .; [or] (2) the chemical test . .  .
          produced  a  result [over .08  blood  alcohol
          content].
          We  have expanded  that inquiry somewhat with our  case
law.32  But because we have held that the exclusionary rule  does
not  apply  in  license suspension hearings,  whether  there  was
reasonable  suspicion for the initial stop  was  not  before  the
hearing officer.
          In  Nevers  v.  State,  Department  of  Administration,
Division  of  Motor  Vehicles,33  in  which  we  held  that   the
exclusionary   rule   does  not  apply  to   license   suspension
proceedings, we noted certain exceptions,34 including where police
action  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.35  But Alvarez did  not
allege  that  any  of  the Nevers exceptions  might  apply.   The
hearing  officer only excluded evidence related  to  the  initial
investigatory  stop, and Alvarez was able to fully  cross-examine
Perez about whether he had probable cause to arrest her based  on
their encounter after the stop.  It was not error for the hearing
officer to limit the inquiry as she did.
     E.   The  Hearing  Officer  Did Not Err  In  Continuing  The
          Hearing  To Take Perezs Testimony After Perez  Did  Not
          Appear.
          Alvarez  argues  that  the  hearing  officer  erred  in
continuing  the  hearing  and taking Perezs  testimony  after  he
failed to call in for the March 10, 2006, hearing.  It is  a  bit
unclear what Alvarez thinks the hearing officer should have done.
In  her  brief Alvarez writes: The hearing officer misinterpreted
the  law  when  she  failed  to  exclude  [Perezs]  testimony  or
otherwise sanction Officer Perez for his willful disobedience  of
his  subpoena.36  She also cites AS 28.15.166(d), which says that
if  the licensee requests a hearing and then fails to appear, the
licensee  has  waived  her  right  to  a  hearing,  and  the  DMV
determination  based  on the police report  becomes  final.   She
argues that the same remedy should apply if the arresting officer
fails to appear.  Apparently this is another way of arguing  that
the  hearing  officer should have excluded Perezs  testimony  and
relied on the existing record.
          We reject Alvarezs argument as legally unsupported.   A
hearing  officer  is  not  required to prohibit  a  witness  from
testifying  if  the witness fails to appear. And AS  28.15.166(d)
does  not require a decision on the available record if a witness
fails  to  appear.  The law provides two penalties for  witnesses
who  disobey a subpoena.  Alaska Civil Rule 45 allows a court  to
hold  in  contempt  a witness who disobeys a subpoena,  including
administrative subpoenas.37   Alaska Statute 09.20.120 reads:
          A  witness who disobeys a subpoena served  on
          the  witness shall also forfeit to the  party
          requiring  the attendance of the witness  the
          sum  of $50 and all damages which that  party
          may sustain by the failure of the witness  to
          attend.  The  forfeiture and damages  may  be
          recovered in a civil action.
Alvarez  never  asked  the  hearing  officer  to  hold  Perez  in
contempt,  nor  did she ask for forfeiture or  damages.   In  any
case,  the  decision not to hold someone in contempt is  entirely
within the lower courts  or hearing officers  discretion.38
          Furthermore, Alvarezs argument that the hearing officer
should  not  have  allowed Perez to testify makes  little  sense.
Alaska  Statute  28.15.166(h) entitles Alvarez  to  cross-examine
Perez.39   We  have stated that: A meaningful license  revocation
hearing,  like a meaningful trial, should therefore  include  the
presence  of the arresting officer, the production of the  report
of  the arresting officer and any tape recordings, videotapes, or
transcripts concerning events surrounding the arrest. 40  It  was
in Alvarezs interest  and it was her due-process right  to cross-
examine  Perez.   She  insisted on doing so.   Alvarezs  argument
fails.
          However, we do note our concern about the appearance of
impropriety  when  the hearing officer refused  to  continue  the
hearing  when  Alvarezs  lawyer  requested  a  continuance,   but
continued  the hearing when Perez did not appear.  Perez  had  as
much  advance notice of the hearing date as had Alvarez, but  the
hearing  officer  was  much more flexible in accommodating  Perez
than Alvarez.  Hearing officers must not only be neutral decision
makers,  they  must also avoid the appearance of  impropriety  or
bias.41   Although we find the hearing officer did not abuse  her
discretion  in continuing the hearing, (and that the  continuance
cured  any  prejudice from the denial of Alvarezs request  for  a
continuance),we note that her conduct in this situation may  have
appeared biased.
     F.   The  Hearing  Officer  Did  Not  Err  In  Refusing   To
          Consider Alvarezs Fitness To Drive During The Delay.
          Alvarez  argues  that the hearing officer  should  have
taken  into  account  her two and a half years  of  good  driving
before  suspending  her  license for  90  days.   She  makes  two
arguments.   The first compares her case to State, Department  of
Commerce and Economic Development v. Schnell,42 which she  claims
holds  that when there is a long delay, the licensee is  entitled
to  be  judged  on current fitness to be licensed.   Second,  she
argues, briefly, that the hearing officer should have taken  into
account  her driving history over the two and a half  year  delay
because  otherwise suspending her license for 90 days  is  purely
punitive,  and the full protections of criminal procedure  should
apply.43   She bases this argument on State v. Neidermeyer,44  in
which  we  explained that a drivers license suspension for  drunk
driving  is  remedial rather than punitive because of the  direct
relationship  between  the suspension  and  the  States  goal  of
removing unsafe drivers from the road.45   If the suspension were
punitive rather than remedial, she would be entitled to the  full
range of criminal procedural protections.46
          As    to   Alvarezs   first   argument,   Schnell    is
distinguishable from this case.  In Schnell, a licensed insurance
          agent was convicted of a felony for failing to declare assets in
his  personal  bankruptcy  filing.47   The  Alaska  Division   of
Insurance then sought to remove Schnells insurance agent  license
on   the   grounds   that   the   felony   conviction   reflected
untrustworthiness.48   After  a  hearing,  the  hearing   officer
recommended suspension of Schnells license.49  But the Division of
Insurance  rejected the recommendation and failed to act  on  the
matter  for  almost  three  years,  when  it  suspended  Schnells
license.50   We  remanded,  requiring the  Division  to  consider
Schnells good record during the long delay.51
          But  the  Division of Insurance in Schnell had a  great
deal  of  discretion  in determining how to act  in  response  to
Schnells felony conviction.52  In this case, the statutes mandate
suspension  of  the drivers license for a certain period  when  a
hearing officer finds certain facts.53  The hearing officer has no
discretion  to  look at other factors or evidence.   The  hearing
officers  inquiry in this case is much narrower than the  inquiry
in  Schnell.  Also, unlike this case, the conduct underlying  the
felony  conviction that led to the revocation of Schnells license
was  not  part  of the licensed conduct.        As  for  Alvarezs
second argument, we conclude that the long delay in this case did
not render the suspension punitive.  In Neidermeyer, we addressed
whether  a  minor  arrested for underage consumption  of  alcohol
unconnected  with  driving  had  a  due  process  right  to   the
protections  afforded a criminal defendant in the  administrative
process to suspend his drivers license.54  We concluded that  the
minor  had  a  due  process right to the same  protections  as  a
criminal  defendant because the license suspension  was  punitive
rather than remedial.55  We reasoned as follows:
          In  Baker  v. City of Fairbanks,  we  defined
          criminal prosecutions to include the trial of
          offenses  that may result in the  loss  of  a
          valuable  license, such as a drivers license.
          We  then qualified this definition by carving
          out    an    exception   for   administrative
          revocations    based    on    conduct    that
          demonstrates unfitness to drive:
                   [The   category   of   criminal
               prosecutions]   does   not    cover
               revocation of licenses pursuant  to
               administrative  proceedings   where
               lawful    criteria    other    than
               criminality are a proper concern in
               protecting   public   welfare   and
               safety,  as the basis of revocation
               or  suspension in such instances is
               not   that  one  has  committed   a
               criminal  offense,  but  that   the
               individual  is  not   fit   to   be
               licensed, apart from considerations
               of  only  guilt or innocence  of  a
               crime.[56]
          We  concluded that license suspension for driving while
intoxicated is not a criminal prosecution because of  the  direct
          relationship between the act of driving while intoxicated and the
administrative  goal of removing unfit drivers  from  the  roads.
But we reasoned that license suspension for underage drinking  is
a  criminal prosecution because the conduct triggering revocation
does  not  necessarily, or even probably, reflect on the arrested
minors fitness to drive.57  As discussed above, when a suspension
is  remedial rather than punitive, the substantive safeguards  of
criminal  process  such as protection from double  jeopardy,  the
right to jury trial, and proof beyond a reasonable doubt  do  not
apply.58  We  conclude that the long delay in this case  did  not
break  that  essential connection between  the  conduct  and  the
administrative  goals  that make a license  revocation  remedial.
The  act of driving while intoxicated is an act of unfit driving,
dangerous  to  the public.  Suspending the drivers license,  even
after  a  long  delay in which the driver drove  unexceptionably,
still  furthers the administrative goal of protecting the  public
and  removing unfit drivers from the road.  The suspension serves
to  deter future unfit driving, and creates a record for the  DMV
of  a  drivers overall fitness.59  The DMV has wide  latitude  to
carry  out its mandate to protect the public from unfit  drivers,
and  we conclude that this suspension is sufficiently related  to
the  DMVs goals that it is remedial rather than punitive, despite
the delay.
V.   CONCLUSION
          We AFFIRM the 90-day suspension of Alvarezs license.
_______________________________
     1    Nystagmus is a rapid, involuntary eyeball movement that
can   be   the  result  of  a  number  of  conditions,  including
intoxication.  Ballard v. State, 955 P.2d 931, 933  (Alaska  App.
1998)  overruled on other grounds by State v. Coon, 974 P.2d  386
(Alaska 1999).

     2     She  did  not request that Perez be made available  by
telephone at any point.

     3     She  asked  whether he prepared the police  report  of
Alvarezs  arrest,  and  whether there  were  any  other  officers
present when Alvarez took her breath test at the station.

     4    123 P.3d 958 (Alaska 2005).

     5    Id. (internal citations omitted).

     6    Stein v. Kelso, 846 P.2d 123, 126 (Alaska 1983).

     7    Although Alvarezs 90-day suspension has already run, we
have  previously held that the collateral consequences of license
suspension, such as higher insurance rates and adverse employment
consequences,  render these appeals not moot.  Graham  v.  State,
633  P.2d 211, 213 (Alaska 1981).  The State has not argued  that
this appeal is moot.

     8    AS 28.15.166(b)-(c).

     9    Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1134 (Alaska 2001).

     10    Id.

     11     Section 11 of the Alaska Constitution reads:  In  all
criminal  prosecutions, the accused shall have  the  right  to  a
speedy  and  public trial, by an impartial jury of  twelve.   The
Sixth  Amendment of the United States Constitution reads: In  all
criminal  prosecutions, the accused shall enjoy the  right  to  a
speedy  and public trial, by an impartial jury . . . .   We  have
already  held that the right to a jury trial does not  attach  to
license  suspension proceedings.  Thorne v. State, Dept  of  Pub.
Safety, 774 P.2d 1326, 1329-31 (Alaska 1989). This is not to  say
that speedy trial limits are never an appropriate measure of  due
process in civil matters.  See United States v. $8,850 in  United
States Currency, 461 U.S. 555 (1983).

     12     State, Dept of Pub. Safety, Div. of Motor Vehicles v.
Niedermeyer, 14 P.3d 264, 270 (Alaska 2000).

     13    Rutherford v. State, 486 P.2d 946, 947 (Alaska 1971).

     14    AS 28.15.166(c).

     15    See infra Part IV.D.

     16    Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles,  20  P.3d 1130, 1134 (Alaska 2001) (citing  Mathews  v.
Eldridge, 424 U.S. 319 (1976)).  The State argues that  in  State
v. Schnell, 8 P.3d 351 (Alaska 2000), we created a four-part test
to   use  to  evaluate  whether  a  delay  in  an  administrative
proceeding  requires  the  agency to rescind  its  administrative
action.   The  State misinterprets Schnell.  Schnell applied  the
standard four-part test for estoppel to the fact pattern in  that
case,  and  held  that  the  government  was  not  estopped  from
rescinding  Schnells insurance agent license on the grounds  that
the government had indicated it would not suspend his license and
he  relied  on  that indication. Id. at 356.  That case  did  not
discuss  due  process,  and  Alvarez  does  not  argue  that  the
government told her it would not suspend her license and that she
relied on that statement to her detriment. See id.

     17    Whitesides, 20 P.3d at 1135. See also Brandal v. State,
Commercial Fisheries Entry Comm., 128 P.3d 732, 738 (Alaska 2006)
(where   agency  failed  to  take  final  action  on   fishermans
application for limited entry permit for 22 years, in addition to
Mathews factors we analyzed factors from Fed. Deposit Ins.  Corp.
v.  Mallen  that  United States Supreme Court uses  to  determine
whether  extended delay violates due process: the  importance  of
the private interest and the harm to this interest occasioned  by
delay[,]  the justification offered by the Government  for  delay
and  its relation to the underlying governmental interest[,]  and
the  likelihood that the interim decision may have been mistaken,
and  noting that these factors closely track the Mathews factors)
(quoting  Fed.  Deposit Ins. Corp. v. Mallen, 486 U.S.  230,  242
(1988)).

     18    Whitesides, 20 P.3d at 1135.  In Whitesides the drivers
license  was suspended for one year.  Id. at 1134.   We  did  not
discuss  the  length of the suspension in our analysis,  and  the
State  does not argue that a 90-day suspension might be a  lesser
property interest than a full year suspension.

     19     This  is especially true considering the due  process
requirement  of  an  in-person  hearing  for  a  licensee   whose
credibility  is at issue.  In Whitesides, we concluded  that  the
burden  to the State in conducting an in-person hearing in  those
circumstances was low in part because hearing officers can  limit
their  travel to times when they have several cases for  hearing.
20 P.3d at 1138.

     20    Brandal, 128 P.3d at 740.

     21      Alvarez  also  argues  that  the  hearing   officers
unilateral  decision to postpone matters another year  until  her
return  from  maternity  leave . . .  was  also  arbitrary  [and]
capricious.   But  from the record it does not  appear  that  the
hearing  officers maternity leave affected the delay. It  appears
that,  before she went on leave, the Ketchikan Police  Department
informed  the  hearing officer that Perez  would  be  abroad  for
another  18 months.  After her maternity leave, about  16  months
later,  she  called again to find out if Perez  maybe  came  back
early.   In fact, Perez had been back for a full year.   Although
we are somewhat concerned that the DMV did not do a better job of
keeping  track  of  Perez, it does not appear  that  the  hearing
officer postponed the hearing due to her maternity leave.

     22    20 P.3d 1130 (Alaska 2001).

     23    Id. at 1132.

     24    AS 28.15.166(g).

     25    See, e.g., Anchorage v. Cook, 598 P.2d 939, 942 (Alaska
1979)  (holding officer had probable cause to arrest for  DUI  in
light of defendants inability to perform the [sobriety] test that
he  attempted,  together with [the officers] other observations);
Bertilson  v.  State,  64  P.3d  180,  184  (Alaska  App.   2003)
(concluding officers had probable cause after they observed  that
defendants eyes were watery and bloodshot and that he had an odor
of  alcohol,  and  that  defendant  failed  the  heel-to-toe  and
horizontal  gaze  nystagmus tests); Russell  v.  Municipality  of
Anchorage, 706 P.2d 687, 689 (Alaska App. 1985) (holding officers
had   probable   cause  because  [i]n  addition  to  [defendants]
appearance  and  the strong odor of alcohol,  the  officers  were
aware  of  his  inability  to perform  certain  tests  of  manual
dexterity).

     26    Stein v. Kelso, 846 P.2d 123, 126 (Alaska 1993).

     27    AS 28.15.166(f) gives the hearing officer authority to
receive relevant evidence.  Section (g) limits the subject matter
of the hearing.

     28    See Gibson v. Geico General Ins. Co., 153 P.3d 312, 316
(Alaska 2007). See also Alaska R. Civ. P. 26(b)(2) (The frequency
or  extent  of  use of the discovery methods otherwise  permitted
under  these rules shall be limited by the court if it determines
that:  (i)  the  discovery sought is unreasonably  cumulative  or
duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive. . .);  Alaska  R.
Evid. 401, 402.

     29     Alvarez  only alleges that the tape would  show  that
Perez  failed  to  observe her for 15 minutes before  taking  her
breath sample,  but she does not allege that anything happened in
that  15 minutes that would change her breathalyser result.   She
also alleges that the video would show fiddling and adjusting  of
the tape which this machine is not suppose[d] to require, but she
does  not say which machine or how that is relevant to her  case.
Assuming  the  machine  is the breathalyzer,  and  not  the  tape
recorder,  this could support her argument that her  test  result
was incorrect.  But the records custodian would have no knowledge
of that.

     30    AS 28.15.166(g).

     31     Nevers  v.  State,  Dept of  Admin.,  Div.  of  Motor
Vehicles, 123 P.3d 958, 964 (Alaska 2005).

     32     See  Thorne v. State, Dept of Pub. Safety,  774  P.2d
1326,  1329  (Alaska  1989) (holding that  procedural  safeguards
include  the  right to consider the inherent margin of  error  in
breathalyzer test results).

     33    123 P.3d at 958.

     34     Id. at 963-64.  We left room for the possibility that
the  exclusionary  rule might apply in two unique  circumstances,
neither of which have been alleged in this case:
          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, . . . a search for blood evidence  in
          direct   violation  of  .   .   .   statutory
          prohibitions would probably require exclusion
          of   the   test   results  in  a   subsequent
          administrative       license       revocation
          proceeding . . . .
          
     35     Id. at 964 (quoting State v. Sears, 553 P.2d 907, 914
(Alaska 1976)).  We recognize there is some confusion in the case
law,  and  take this opportunity to affirm Nevers.   Just  a  few
months  after Nevers, we issued an opinion in Saltz v. State,  in
which  we  analyzed  whether  or not an  officer  had  reasonable
suspicion  to stop a suspected drunk driver in an appeal  from  a
license suspension, without referring to Nevers.  Saltz v. State,
Dept  of  Admin.,  Div. of Motor Vehicles, 126 P.3d  133  (Alaska
2005).   In 2007 we addressed an exclusionary rule appeal from  a
license  suspension,  and did not address  the  conflict  between
Nevers  and  Saltz.  Hartman v. State, Dept of  Admin.,  Div.  of
Motor  Vehicles,  152 P.3d 1118 (Alaska 2007).   In  Hartman,  we
treated  Nevers as good law, but ultimately held that  there  was
reasonable  suspicion for the stop.  Id. at 1122.  Because  there
was  reasonable suspicion for the stop, we concluded that we  did
not  need  to  reach the question of whether a  Nevers  exception
applied.   Id.   Despite Saltz, we affirm the holding  in  Nevers
that  the exclusionary rule does not apply as a matter of  course
in license suspension proceedings.

     36     The State argues that she waived this argument by not
objecting to the continuation of the hearing at the time, but  we
disagree.   Although her attorneys objection was  somewhat  vague
and unclear, he did object to the continuance at the time.

     37    The same rule applies in criminal proceedings.  Alaska
R. Crim. P. 17(g).

     38    Stuart v. Whalers Cove, Inc., 144 P.3d 467, 469 (Alaska
2006).

     39    AS 28.15.166(h) reads:

          The  determination of the hearing officer may
          be  based  upon  the sworn report  of  a  law
          enforcement  officer.   The  law  enforcement
          officer  need not be present at  the  hearing
          unless  either  the  person  requesting   the
          hearing  or  the hearing officer requests  in
          writing  before the hearing that the  officer
          be  present.  If in the course of the hearing
          it becomes apparent that the testimony of the
          law  enforcement  officer  is  necessary   to
          enable   the   hearing  officer  to   resolve
          disputed issues of fact, the hearing  may  be
          continued to allow the attendance of the  law
          enforcement officer.
          
     40    Hartman, 152 P.3d at 1124 (quoting Graham v. State, 633
P.2d  211,  216 n.12 (Alaska 1981)).  We note that  present  here
includes  presence  by telephone. See Gregg v.  Gregg,  776  P.2d
1041, 1044 (Alaska 1989) (holding that an oath taken by an out-of-
state  witness participating in an Alaska proceeding by telephone
is  valid  due  to  the  witness  constructive  presence  in  the
courtroom and ability to provide testimony).

     41     Although  DMV  hearing officers are  not  within  the
jurisdiction  of  the  Officer  of  Administrative  Hearings  (AS
44.64.030), the code of conduct for those hearing officers should
give  guidance  to  DMV hearing officers.  AS 44.64.050  requires
that  hearing  officers avoid impropriety or  the  appearance  of
impropriety, and perform the duties of the office impartially and
diligently.

     42    8 P.3d 351 (Alaska 2000).

     43     Although  her  argument on  this  point  is  somewhat
unclear,  we  generally address a pro se appellants arguments  if
her briefing was such that we could discern [her] legal arguments
and  the  appellee could reply to them. Gilbert v. Sperbeck,  126
P.3d 1057, 1062 (Alaska 2005) (internal citations omitted).   The
State responds to her argument also briefly.  It argues summarily
that,  despite  the  delay,  the  90-day  suspension  served  the
administrative goal of removing unfit drivers from the road.  The
State  also  argues that she waived this argument by  failing  to
raise it in the proceedings below, but we disagree.  Although her
legal arguments could have been clearer, she did argue before the
hearing  officer that to suspend the license of a fit driver  can
only be described as an act of punishment, and she did argue that
the  hearing  officer should take into account her  good  driving
record during the delay.

     44    14 P.3d 264 (Alaska 2000).

     45    Id. at 268-69.

     46    See id.

     47    8 P.3d at 354.

     48    Id.

     49    Id.

     50    Id. at 354-55.

     51    Id. at 360.

     52     Id. (the director has broad discretion to decide what
sanction is appropriate).

     53    AS 28.15.165, .166.

     54    14 P.3d 264 (Alaska 2000).

     55    Id. at 268.

     56     Id. at 269 (quoting Baker v. Fairbanks, 471 P.2d 386,
402 n.28 (Alaska 1970)).

     57    Id. at 270.

     58     See id. at 269; Thorne v. State, Dept of Pub. Safety,
774 P.2d 1326, 1329 (Alaska 1989).

     59    See AS 28.15.151 (directing that the DMV keep a record
of every license that has been suspended . . . and the reason for
[the] action[]).

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