Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.

 

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 (3/18/2011) sp-6546

Alvarez v. State, Dept. of Administration, Division of Motor Vehicles (3/18/2011) sp-6546, 249 P3d 286

        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 

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. 6546 - March 18, 2011 
                                              ) 

               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 driver's 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 

----------------------- Page 2-----------------------

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 driver's 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 

        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-                                            6546 

----------------------- Page 3-----------------------

              After Alvarez's 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 Alvarez's 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 Perez's 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 

Perez's return from Iraq.   The hearing was ultimately rescheduled for March 10, 2006, 

almost two years later, once Perez had returned. 

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

                                             -3-                                        6546 

----------------------- Page 4-----------------------

                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   Alvarez's   license   for   90   days.  Alvarez 

appealed to the superior court, which affirmed the hearing officer's decision.                Alvarez 

appeals. 

III.    STANDARD OF REVIEW 

                We laid out the standard of review for license suspension proceedings in 

                                                                                          4 
Nevers v. State, Department of Administration, Division of Motor Vehicles : 

                We      review     license     revocation     hearings     under     AS 
                28.15.166(m), which provides that the court may "reverse the 

        3       She asked whether he prepared the police report of Alvarez's 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). 

                                                  -4-                                               6546 

----------------------- Page 5-----------------------

                 department's       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 officer's 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   officer's   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 driver's 
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. 

        5        Id. (internal citations omitted). 

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

        7        Although Alvarez's 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. 

                                                    -5-	                                               6546
 

----------------------- Page 6-----------------------

                1.	     Speedy       trial   limits    do    not   apply     to   license suspension 
                        proceedings. 

                Alaska Statute 28.15.165 requires suspension of the driver's 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 accused's 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 

        8       AS 28.15.166(b)-(c). 

        9        Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 

1130, 1134 (Alaska 2001). 

        10	     Id. 

                                                   -6-	                                             6546
 

----------------------- Page 7-----------------------

limits do not attach to driver's 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 criminalpunishment.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 

        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, Dep't 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, Dep't 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). 

                                                    -7-                                               6546
 

----------------------- Page 8-----------------------

hearings,14 and obviously licensees are not incarcerated.  As to the third purpose, loss of 

a driver's license   is not the equivalent of criminal punishment in its effect on a person's 
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 

       14      AS 28.15.166(c). 

       15      See infra Part IV.D. 

       16      Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 

1130, 1134 (Alaska 2001) (citingMathews 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 Schnell's 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. 

                                              -8-                                          6546
 

----------------------- Page 9-----------------------

probable   value,   if   any,  of   additional   safeguards,   and   (3)   the   government's   interest, 
including fiscal and administrative burdens, in implementing additional safeguards.17 

                As to the first factor, we have previously held that a driver's 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   State's   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 Alvarez's claim. 

        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 fisherman's 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   driver's   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. 

                                                   -9-                                              6546
 

----------------------- Page 10-----------------------

                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 Perez's faded memory. 

                3.	     Alvarez's 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 Perez's testimony by telephone while he was in Iraq.21  But Alvarez did not 

request that Perez's 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     Perez's    Testimony 
                Telephonically. 

                1. 	    Whitesides does not require that Officer Perez's testimony be 
                        taken in person. 

        20	     Brandal, 128 P.3d at 740. 

        21      Alvarez   also   argues   that   "the   hearing   officer's   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 officer's 
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. 

                                                  -10-	                                            6546
 

----------------------- Page 11-----------------------

                Relying primarily on  Whitesides v. State, Department of Public Safety, 
Division of Motor Vehicles,22 Alvarez argues that taking Perez's testimony telephonically 

violated her right to due process.          The State responds that  Whitesides holds that due 

process requires an in-person hearing only for a licensee whose credibility is at issue, not 

for other witnesses.      We conclude that an in-person hearing was not required because 

Perez's credibility was not 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 Perez's 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 

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

        23      Id. at 1132. 

        24      AS 28.15.166(g). 

                                                  -11-                                               6546 

----------------------- Page 12-----------------------

were noted in Officer Perez's 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 Alvarez's 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]." 

                Alvarez's explanations for Officer Perez's observations did not cast doubt 

on Officer Perez's credibility.       More importantly, Alvarez's 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 

        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 defendant's "inability to perform 
the [sobriety] test that he attempted, together with [the officer's] other observations"); 
Bertilson   v.   State,   64   P.3d   180,   184   (Alaska   App.   2003)   (concluding   officers   had 
probable cause after they observed that defendant's "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 [defendant's] 
appearance and the strong odor of alcohol, the officers were aware of his inability to 
                                                                                         (continued...) 

                                                  -12-                                               6546 

----------------------- Page 13-----------------------

                Because Officer Perez's credibility was not in material dispute, we decline 

to reach the question whether  Whitesides should be extended to require the in-person 

testimony of any material witness whose testimony is in dispute, leaving that question 

for resolution in a case involving such a witness. 

                2.	     Taking Perez's 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 Alvarez's 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 

        25      (...continued) 

perform certain tests of manual dexterity"). 

                                                  -13-	                                              6546 

----------------------- Page 14-----------------------

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 custodian's 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 

        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. 

                                                   -14-                                               6546
 

----------------------- Page 15-----------------------

                 The hearing officer's 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    Alvarez's 

"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 

        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). 

                                                   -15-                                               6546
 

----------------------- Page 16-----------------------

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   Perez's 

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 Perez's 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, 

        31      Nevers v. State, Dep't of Admin., Div. of Motor Vehicles, 123 P.3d 958, 964 

(Alaska 2005). 

        32      See Thorne v. State, Dep't 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"). 

                                                  -16-                                              6546
 

----------------------- Page 17-----------------------

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 

         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, 
Dep't 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, Dep't of Admin., Div. of Motor 
Vehicles, 152 P.3d 1118 (Alaska 2007). InHartman, we treatedNevers as good law, but 
ultimately held that there was reasonable suspicion for the stop.                   Id. at 1122. Because 
                                                                                             (continued...) 

                                                    -17-                                                  6546 

----------------------- Page 18-----------------------

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 
                Perez's Testimony After Perez Did Not Appear. 

                Alvarez argues that the hearing officer erred in continuing the hearing and 

taking Perez's 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 

[Perez's] 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 Perez's testimony 

and relied on the existing record. 

        35      (...continued) 

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   attorney's 
objection was somewhat vague and unclear, he did object to the continuance at the time. 

                                                  -18-	                                              6546 

----------------------- Page 19-----------------------

                We reject Alvarez's 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 court's - or hearing officer's - discretion.38 

                Furthermore, Alvarez's 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 

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

        38      Stuart v. Whaler's 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 
                                                                                          (continued...) 

                                                   -19-                                               6546 

----------------------- Page 20-----------------------

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 

Alvarez's interest - and it was her due-process right - to cross-examine Perez.                     She 

insisted on doing so.   Alvarez's argument fails. 

                However, we do note our concern about the appearance of impropriety 

when   the   hearing   officer   refused   to   continue   the   hearing   when   Alvarez's   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 Alvarez's 

        39	     (...continued) 

                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. 

                                                  -20-	                                            6546
 

----------------------- Page 21-----------------------

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 Alvarez's 
                "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.   Niedermeyer,44     in   which   we 

explained that a driver's license suspension for drunk driving is "remedial" rather than 

"punitive" because of the direct relationship between the suspension and the State's goal 

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

        43      Although her argument on this point is somewhat unclear, we generally 

address a pro se appellant's 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). 

                                                  -21-                                             6546
 

----------------------- Page 22-----------------------

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 Alvarez's 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 Schnell's insurance agent license on the grounds that the felony conviction 
reflected   untrustworthiness.48       After   a  hearing,    the  hearing   officer   recommended 

suspension      of  Schnell's    license.49   But     the  Division    of  Insurance     rejected   the 

recommendation and failed to act on the matter for almost three years, when it suspended 
Schnell's license.50     We remanded, requiring the Division to consider Schnell's 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 Schnell's felony conviction.52   In this case, the 

statutes mandate suspension of the driver's license for a certain period when a hearing 

        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"). 

                                                 -22-                                            6546
 

----------------------- Page 23-----------------------

officer finds certain facts.53    The hearing officer has no discretion to look at other factors 

or evidence.   The hearing officer's 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 Schnell's license was not part of the licensed conduct. 

        As for Alvarez's second argument, we conclude that the long delay in this case did 

not render the suspension punitive.             In Niedermeyer, 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 driver's 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 driver's 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 

        53      AS 28.15.165, .166. 

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

        55      Id. at 268. 

                                                   -23-                                                6546 

----------------------- Page 24-----------------------

                      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 minor's 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 driver's 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 driver's overall 
fitness.59 The DMV has wide latitude to carry out its mandate to protect the public from 

       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, Dep't 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[]"). 

                                              -24-                                         6546
 

----------------------- Page 25-----------------------

unfit drivers, and we conclude that this suspension is sufficiently related to the DMV's 

goals that it is "remedial" rather than "punitive," despite the delay. 

V.     CONCLUSION 

              We AFFIRM the 90-day suspension of Alvarez's license. 

                                           -25-                                       6546
 

----------------------- Page 26-----------------------

          In the Supreme Court of the State of Alaska 
 

 Sonja Alvarez,                                    ) 
                                                   )       Supreme Court No.  S-12768 
                          Appellant,               ) 
              v.                                   )                   Order 
                                                   )           Petition for Rehearing 
State of Alaska, Department of                     ) 
Administration, Division of Motor                  ) 
Vehicles,                                          ) 
                                                   ) 
                          Appellee.                )          Date of Order: 3/18/11 
                                                   ) 
Trial Court Case #  lKE-04-0011SCI 

                Before:   Carpeneti, Chief Justice, Eastaugh, Fabe, and Winfree, Justices. 

                Appellee State ofAlaska petitioned for rehearing ofthe opinion issued on 

8/1311 0.  Appellant Sonja Alvarez did not file a response to the petition for rehearing as 

allowed by the  court's     1114111  order.   The  State's petition for rehearing  is  GRANTED, 

Opinion No.  6500, issued on 8/1311 0, is WITHDRAWN,  and attached Opinion No.  6546 

is issued on this date in its place. 

                The changes effected by Opinion No.  6500 are the following: 

                1. 	    Subheading IV.B.I.,  found  on page        11, has  been  moved  up  three 

                       sentences in the opinion, so that it immediately follows Heading B. 

               2. 	     Subheading IV.B.I. has been changed to read" Whitesides does not 

                       require that Officer Perez's testimony be taken in person." 

               3. 	    The last sentence ofthe first paragraph of Subheading IV.B.I. has 

                       been changed to read,  "We conclude that an in-person hearing was 

                       not required because Perez's credibility was not at issue." 

               4. 	    The last sentence ofthe last paragraph ofSubheading IV.B.I., found 

                       on page    13, has  been  changed  to  read,    "Because  Officer  Perez's 

                       credibility  was   not  in  material   dispute,  we   decline  to  reach   the 

----------------------- Page 27-----------------------

Sonja Alvarez v.  State o/Alaska, DMV 
 Supreme Court No.  S-12768 
Order of 3/18/11 
Page Two 

                          question whether  Whitesides should be extended to require the  in­ 

                          person  testimony  of any  material  witness  whose  testimony  is                in 

                          dispute, leaving that question for resolution in a case involving such 

                          a witness." 

         Entered by direction ofthe court. 

                                                           Clerk of the Appellate Courts 

cc: 	    Supreme Court Justices 
        Judge Thompson 
        Trial Court Appeals Clerk 
        Publishers 

Distribution: 

        Margaret Paton  Walsh 
        Assistant Attorney General 
         1031  West Fourth Avenue Suite 200 
        Anchorage AK 9950 I 

        Sonja Alvarez 
        P.O.  Box  7933 
        Ketchikan AK  9990 I 
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC