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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jason Barnebey v. State of Alaska, Department of Administration, Division of Motor Vehicles (4/10/2020) sp-7438

Jason Barnebey v. State of Alaska, Department of Administration, Division of Motor Vehicles (4/10/2020) sp-7438

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



JASON  BARNEBEY,                                                 )  

                                                                 )     Supreme Court No. S-16844  

                                                                                       

                                                                                                        

                                Appellant,                       )  

                                                                 )     Superior  Court  No.  4FA-15-01406  CI  

           v.                                                    )  

                                                                                           

                                                                 )    O P I N I O N  

                     

STATE OF ALASKA,                                                 )  

                                                                                                          

                             

DEPARTMENT OF                                                    )    No. 7438 - April  10, 2020  

                                                         

ADMINISTRATION, DIVISION OF                                      )  

                 

MOTOR VEHICLES,                                                  )  

                                                                 )  

                                Appellee.                        )  

                                                                 )  



                                                                                                          

                                             

                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                    

                      Fourth Judicial District, Fairbanks, Michael P. McConahy,  

                      Judge.  



                                                                                                              

                      Appearances:             Robert  John,  Law  Office  of  Robert  John,  

                                                                                                       

                      Fairbanks,  for  Appellant.                     Shelley  J.  White,  Assistant  

                                                                                                  

                      Attorney   General,   Anchorage,   and                           Jahna   Lindemuth,  

                                                                        

                      Attorney General, Juneau, for Appellee.  



                                                                                                                        

                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                       

                      A man was arrested for driving under the influence of alcohol.   At the  



                                                                                                                          

police station he was administered a breath test by a DataMaster testing instrument,  


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which showed a result of .081 percent alcohol, above the .08 legal limit.   The man  



                                                                                                                     

elected to obtain an independent chemical test, which showed a result of .073. Following  



                                                                                                          

an administrative hearing, a hearing officer relied on the DataMaster breath-test result  



                                                                                                                       

to sustain the Department of Motor Vehicles's revocation of the man's license pursuant  



           

to AS 28.15.165(c).  



                                                                                                                              

                    The  man  appealed  to  the  superior  court,  arguing,  as  he  had  at  the  



                                                                                                                         

administrative hearing, that it was error not to consider the DataMaster's inherent margin  



                                                                                                                       

of error in determining whether his test result was over the legal limit.  The superior  



                                                                                                                               

court affirmed the hearing officer's decision and awarded attorney's fees to the State; the  



                       

man filed this appeal.  



                                                                                                                               

                    Weconcludethat thehearingofficer properly interpreted thegoverning law  



                                                                                                                                     

and did not violate due process in her consideration of the DataMaster's margin of error.  



                                                                                                                              

We affirm the decision revoking the man's license.  However, we conclude that it was  



                                                                                                                  

error for the superior court to award attorney's fees to the State without considering  



                                                                                                                          

whether  the  man  was   entitled  to  protection  as  a  constitutional  litigant  under  



                                                                                                                             

AS 09.60.010(c)(2). We therefore vacate the attorney's fees award and remand the case  



                                                         

for further consideration of only that issue.  



                                  

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                               

                    An Alaska state trooper stopped Jason Barnebey just after midnight for  



                                                                                                                               

failing to use a turn signal and driving on the double yellow line.   According to the  



                                                                                                                                 

trooper, Barnebey had "bloodshot and watery eyes" and his breath had "a light odor of  



                                                                                                                              

an alcoholic beverage."  Barnebey admitted to the trooper that he had consumed a few  



             

drinks.  



                                                               -2-                                                         7438
  


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                                                  The trooper administered three standardized field sobriety tests. Barnebey                                                                                                                                                                  



passed the walk-and-turn test and the one-leg-stand test, but he failed the horizontal gaze                                                                                                                                                                                                                      



nystagmus (HGN) test with the minimum number of "clues" necessary to be considered                                                                                                                                                                                                        



a failure.                         



                                                  The trooper arrested Barnebey for driving under the influence (DUI) and                                                                                                                                                                                            



gave him a preliminary breath test, which produced a reading of .081 percent breath                                                                                                                                                                                                                       



alcohol concentration (BrAC).                                                                                      At the police station, at about 1:00 a.m., Barnebey gave                                                                                                                                     



a breath sample for testing on the DataMaster machine. This also produced a reading of                                                                                                                                                                                                                                     



 .081 BrAC, just over the legal limit of .08 set by AS 28.35.030(a)(2).                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                                   1  He had  

                                                  Barnebey requested an independent chemical test, as was his right.                                                                                                                                                                                                 



blood drawn at Fairbanks Memorial Hospital at 1:35 a.m., and laboratory testing of the  

                                                                                                                                                                                                                                                                                                                       



sample showed a blood-alcohol level of .073 g/100mL.  Because of the DataMaster test  

                                                                                                                                                                                                                                                                                                                      



result,  however,  the  trooper  informed  Barnebey  that  his  driver's  license  would  be  

                                                                                                                                                                                                                                                                                                                       



revoked unless he requested an administrative hearing.  

                                                                                                                                                                                                               



                         B.                       Proceedings  



                                                  AhearingofficerwiththeDepartment ofAdministration, Division ofMotor  

                                                                                                                                                                                                                                                                                                            



Vehicles (DMV), presided over a two-day administrative hearing. Barnebey raised two  

                                                                                                                                                                                                                                                                                                                    



defenses to revocation of his driver's license:  (1) the trooper lacked probable cause for  

                                                                                                                                                                                                                                                                                                                       



the arrest, and (2) the breath-test result of .081 was within the DataMaster's inherent  

                                                                                                                                                                                                                                                                                                   



margin of error.   The hearing officer  rejected these defenses.   She found that "the  

                                                                                                                                                                                                                                                                                                                 



operator who administered [the] breath test was certified at the time and complied with  

                                                                                                                                                                                                                                                                                                                 



                         1                        See   AS   28.35.033(e)   ("The   person   tested   may   have   a   physician,   or   a  



qualified technician, chemist, registered or advanced practice registered nurse, or other                                                                                                                                                                                                                      

qualified person of                                                   the person's own choosing administer a chemical test [of the person's                                                                                                                                                        

breath or blood] in addition to the test administered at the direction of a law enforcement                                                                                                                                                                                         

officer.").  



                                                                                                                                                            -3-                                                                                                                                                 7438
  


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the regulations set forth for breath analysis," and that "[t]he instrument did a self-check                                                                                                                                                                                                                  



before and after [Barnebey's] subject sample."                                                                                                                                                      She noted that the DataMaster was                                                                                                    



"within its working tolerances."                                                                                                   Finally, she found that there was no "reason or case                                                                                                                                                 



law" requiring her to base her decision on the result of Barnebey's independent chemical                                                                                                                                                                                                                              



test rather than the DataMaster test result, and that the independent chemical test actually                                                                                                                                                                                                                              



corroborated   the   DataMaster   result   because   it   showed   "an   elimination   due   to   the  



consumption earlier in the evening."                                                                                                               The hearing officer affirmed the DMV's decision                                                                                                                      



to revoke Barnebey's license, and, because of his prior alcohol-related driving offenses,                                                                                                                                                                                                                             



the revocation was for three years.                                                                                                          



                                                     Barnebey appealed the hearing officer's decision to the superior court and                                                                                                                                                                                                            



moved to stay the license revocation pending the appeal's outcome.                                                                                                                                                                                                            The superior court                                     



granted the stay.                                                   Barnebey raised two points on his superior court appeal:                                                                                                                                                                               (1) that the                      



hearing officer erred by failing to conclude that Barnebey's test result was within the                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                                       2  and (2) that  

DataMaster's inherent margin of error and therefore below the legal limit,                                                                                                                                                                                                                                                                 



the hearing officer erred by assuming that the lower blood-alcohol level indicated by his  

                                                                                                                                                                                                                                                                                                                                              



independent chemical test was simply a reflection of the passage of time since the  

                                                                                                                                                                                                                                                                                                                                            



DataMaster test.  The superior court upheld the hearing officer's decision, concluding  

                                                                                                                                                                                                                                                                                                             



that the DataMaster's margin of error was irrelevant to the offense and that substantial  

                                                                                                                                                                                                                                                                                                               



evidence, including the breath-test result and Barnebey's admission that he had been  

                                                                                                                                                                                                                                                                                                                                      



drinking, supported the hearing officer's decision.  

                                                                                                                                                                    



                                                      The DMV moved  for  attorney's fees.                                                                                                                                Barnebey  opposed  the  motion,  

                                                                                                                                                                                                                                                                                                                         



arguing that he was a constitutional claimant for purposes of the statutory protection  

                                                                                                                                                                                                                                                                                                                



                           2                          Specifically, Barnebey argued that the DataMaster's margin of error is five                                                                                                                                                                                                          



percent and "thus, in order for a person's DataMaster result to be over the legal limit, the                                                                                                                                                                                                                                                  

result must be .085."                                                                



                                                                                                                                                                        -4-                                                                                                                                                           7438
  


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                                                                                           3  

against   adverse   awards   of   attorney's   fees.     But   the   superior   court   awarded   DMV  



$4,658.33 in attorney's fees - twenty percent of what DMV had incurred on appeal.                                                                                                    



Barnebey appeals.   



III.          STANDARD OF REVIEW                     



                            When the decision of a hearing officer in a driver's license revocation                                                          



hearing is appealed to us from a decision of the superior court sitting as an intermediate                                                                



                                                                                                                                                    4  

court of appeal, we independently review the hearing officer's decision.                                                                                                         

                                                                                                                                                        We review it  



                                                                                                                                                        

"under AS 28.15.166(m), which provides that the court 'may reverse the 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  



                                  5                                                                                                                         6  

                                                                                                                                                                

in the record.' "                     We apply our independent judgment to questions of law,                                                                   including  



                                                                                                                                                             

"questions involving the constitutionality of a statute[,] 'and will adopt the rule of law  



                                                                                                                                          7  

                                                                                                                                                                  

which is most persuasive in light of precedent, reason, and policy.' "                                                                        One such question  



                                                                                                                                                                           

of  law  reviewed  de  novo  is  "whether  the  superior  court  correctly  applied  the  law  



              3             See   AS   09.60.010(c)(2)   (prohibiting   attorney's   fees   awards  against  



non-prevailing    parties    bringing  non-frivolous    constitutional    claims    and    lacking  

"sufficient   economic   incentive   to   bring   the   action   or   appeal   regardless   of   the  

constitutional claims involved").            



              4             Morris v. State, Dep't of Admin., Div. of Motor Vehicles, 186 P.3d 575, 577  

                                                                                                                                                                            

(Alaska 2008).  

                  



              5             Id. (quoting Saltz v. State, Dep't of Pub. Safety, 942 P.2d 1151, 1152 & n.2  

                                                                                                                                                                             

(Alaska 1997) (holding that supreme court and superior courts apply same standard of  

                                                                                                                                                                               

review)).  



              6             See State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014).  

                                                                                                                                 



              7             Valentine v. State, 215 P.3d 319, 322 (Alaska 2009) (quoting State v.  

                                                                                                                                                                               

Murtagh, 169 P.3d 602, 606 (Alaska 2007)).  

                                                                              



                                                                                       -5-                                                                               7438
  


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                                                                                                           8  

allowing or prohibiting an [attorney's fees] award."                                                          We review "the hearing officer's                    



factual findings under the substantial evidence test, 'determining "whether the findings                                                                           



are supported by such evidence as a reasonable mind might accept as adequate to support                                                                             

a conclusion." ' "                 9  



IV.	          DISCUSSION  



                                                                                                                                                                     

              A.	           The Hearing Officer Did Not Violate Barnebey's Due Process Rights  

                                                                                                                                                                          

                            By Declining To Find That A DataMaster Test Result Within The  

                                                                                                                                                                  

                            Machine's Inherent Margin Of Error Was Below The Legal Limit.  



                                                                                                                                                                                 

                            "A driver's license is an important property interest, and the driver has a  



                                                                                                                                                                        

constitutional  right  to  a  meaningful  hearing  before  the  [S]tate  can  suspend  [the]  



                  10  

                                                                                                                                                           

license."              Barnebey argues that the DMV violated his due process right to a meaningful  



                                                                                                                                                                   

hearing when it failed to conclude that a DataMaster result within the machine's inherent  



                                                                                                                                                                             

margin of error "brings the test result below the legal limit," requiring dismissal of the  



                                                11  

                                                     

revocation proceeding. 



                                                                                                                                                                           

                            Administrative  license  revocations  resulting  from  sobriety  tests  are  



                                                                                                                                                                             

governed by AS 28.15.165. The statute's language has been amended several times, but  



                                                                                                                                                                              

the three essential prerequisites for revocation remain unchanged: (1) probable cause for  



              8             Titus v. State, Dep't of  Admin.,  Div.  of  Motor Vehicles,  305 P.3d  1271,  1277  



(Alaska  2013).  



              9            Morris,   186  P.3d  at  577  (quoting  Saltz,   126  P.3d  at   136).  



              10            Champion  v.  Dep't  of  Pub.  Safety,  721  P.2d   131,   133  (Alaska   1986).  



              11            Barnebey  also  appears  to  frame  his  argument  as  a  challenge  to  the  hearing  



officer's  exclusion  of  margin-of-error  evidence.   But  he  does  not  identify  any  evidence  

that  was  excluded,  and  the  hearing  record  shows  that  the  hearing  officer  accepted  most  

evidence   that   was   offered,   including   portions   of   a   transcript   from   another case   that  

Barnebey  offered  as  support  for  his  margin-of-error  argument.    



                                                                                       -6-	                                                                              7438
  


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

the arresting officer to believe that the driver was driving while under the influence;                                                      12  



                                                                                                                                      

(2) a chemical test that "produced a result described in AS 28.35.030(a)(2) or the person  

                                                               13  and (3) proper notice of the DMV's intent to  

                                                                                                                                             

                                                       

refused to submit to a chemical test"; 

             14   The chemical test "result" incorporated by reference is "0.08 percent or more  

revoke.                                                                                                                                 



by weight of alcohol in the person's blood," "80 milligrams or more of alcohol per 100  

                                                                                                                                          



milliliters of blood," or "0.08 grams or more of alcohol per 210 liters of the person's  

                                                                                                                                  

breath."15  And since 1996, AS 28.90.020 clarifies that "the result described by statute  

                                                                       

is not affected by the [testing] instrument's working tolerance."16  

                                                                                        



                      A person may request administrative review of a license revocation as  

                                                                                                                                             



outlined in AS 28.15.166.   However, the review hearing is "limited to the issues of  

                                                                                                                                             



whether the law enforcement officer had probable cause" and whether theperson refused  

                                                                                                                                     



to submit to a chemical test or whether an administered chemical test produced a result  

                                                                                                                                       

described in AS 28.35.030(a)(2).17   If these issues "are determined in the affirmative by  

                                                                                                                                            



a preponderance of the evidence, the hearing officer shall sustain the action of" the  

                                                                                                                                           



           18  

DMV.            



           12         AS  28.15.165(c)(3).  



           13         AS  28.15.165(c)  (emphasis  added).  



           14         AS  28.15.165(a).  



           15         AS  28.35.030(a)(2)  (defining  "crime  of  driving  while  under  the  influence  



of  an  alcoholic  beverage").  



           16         Ch.   143,  §   17,  SLA   1996.  



           17         AS  28.15.166(g).  



           18         AS  28.15.166(j).  



                                                                      -7-                                                              7438
  


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

                          Wehaveheld that certain testing-relatedevidencemaybeexcluded                                                                 without  



running afoul of the due process guarantee when, given the elements of the alleged                                                                      

                                                                                                       19    In order to explain why that  

offense, the evidence is not relevant or exculpatory.                                                                                                         



holding  directs  our  decision  here,  we  first  review  past  Alaska  cases  addressing  

                                                                                                                                                



breath-test evidence.                       We note  that  although administrative license revocations are  

                                                                                                                                                               



governed by AS 28.15.165(c), our analysis of this issue must also examine the case law  

                                                                                                                                                               



addressing  AS  28.35.030(a)(2)  -  the  statute  that  criminalizes  driving  under  the  

                                                                                                                                                               



influence "as determined by a chemical test" - because revocation under AS 28.15.165  

                                                                                                                                                   

depends  in  part  on  "a  result  described  in  AS  28.35.030(a)(2)."20                                                                Understanding  

                                                                                                                                        



subsection .030(a)(2) and how it has been interpreted in both license revocations and  

                                                                                                                                                               



criminal prosecutions is thus important to our analysis.  

                                                                                         



                          1.	         Alaska  precedents  permit  the  exclusion  of  margin-of-error  

                                                                                                                                    

                                      evidence under AS 28.35.030(a)(2).  

                                                                                                               



                          In Lauderdale v. State, decided in 1976, we approved a district court's  

                                                                                                                                                        



order suppressing the results of a breathalyzer test in a DUI prosecution after the State  

                                                                                                                                                            



was unable to produce the ampoule of the defendant's collected breath for independent  

                                                                                                                                              

testing.21  

                                                                                                                                                            

                   We reasoned that the defendant would be denied a fair trial if he was not given  



                                                                                                                                              

the opportunity to "test the reliability or credibility of the results of the breathalyzer  



                                                                                                                                                             

test . . . by a scientific analysis of some of the [collected breath samples] which . . . may  



                                                                                                                                         22  

                                                                                                                              

well yield scientifically reliable data bearing on his innocence or guilt."                                                                    



             19          See Valentine v. State                    , 215 P.3d 319, 325-27 (Alaska 2009).                         



             20  

                                  

                         AS 28.15.165(c).  



             21  

                                                                                        

                          548 P.2d 376, 378, 384 (Alaska 1976).  



             22  

                                     

                         Id. at 381.  



                                                                                -8-	                                                                        7438
  


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

                            Ten years later, in                    Champion v. Department of Public Safety                                                , we extended     



this rationale to the State's failure to preserve breath samples in license revocation                                                                          

                                                                                                        23    We reasoned in Champion that the  

proceedings, which are civil rather than criminal.                                                                                                                               



driver's license is "an important property interest" and the driver is therefore entitled to  

                                                                                                                                                                                    



"a meaningful hearing" before it can be taken away; that "the breath test is of central  

                                                                                                                                                                         



importance in the administrative license revocation proceeding"; and that "[t]he ability  

                                                                                                                                                                          



of the defendant to evaluate these tests is critical to [the defendant's] ability to present  

                                          

 [a] case."24  We concluded that "[t]o deny a driver a reasonable opportunity to test the  

                                                                                                                                                                                 



reliability and credibility of the breath test is to deny [the driver] a meaningful and  

                                                                                                                                                                               

fundamentally  fair  hearing"  in  the  administrative  process.25                                                                      A  few  years  later  we  

                                                                                                                                                                                



concluded that this due process concern could be satisfied if a defendant was given  

                                                                                                                                                                           

notice of the statutory right to an independent test.26  

                                                                                                   



                            We addressed margin-of-error evidence in Barcott v. State, Department of  

                                                                                                                                                                                    

                                                                                                27      The  driver  in  Barcott  was  given  a  

Public  Safety,  Division  of  Motor  Vehicles.                                                                                                                                     

                                                                            



preliminary breath test that produced a reading of .102 percent (when the legal limit  

                                                                                                                                                                             

was .10).28               At the police station the driver was given a breath test on the Intoximeter  

                                                                                                                                                               



              23            721 P.2d 131, 132-33 (Alaska 1986).
                              



              24            Id.  at 133.
   



              25            Id.
  



              26             Gundersen v. Municipalityof Anchorage, 792P.2d673,677(Alaska1990).  

                                                                                                                                                                          



              27            741 P.2d 226 (Alaska 1987).                     



              28            Id. at 227, 228 n.1.  

                                                             



                                                                                         -9-                                                                                 7438
  


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

                                                                                                                              29  

3000 machine, which produced a reading of .10 percent.                                                                               The police officer                        also  



conducted two control tests on the machine; one produced a reading .001 percent higher                                                                                     



than the testing sample's known alcohol level and the second produced a reading .006                                                                                           

                              30  We reversed the hearing officer's revocation of the defendant's driver's  

percent lower.                                                                                                                                                          

license.31            Citing Champion, we held that the case's reasoning "leads inescapably to the  

                                                                                                                                                                                  



conclusion that due process requires consideration of the margin of error inherent in the  

                                                                                                                                                                                  

breath testing procedure used in this case."32   We rejected the State's argument "that the  

                                                                                                                                                                                  



legislature presumably was aware of the margin of error in the test but nonetheless  

                                                                                                                                                               

created a presumption of intoxication based on a particular test result."33                                                                                 We observed  

                                                                                                                                                                     



that the legislature had not specifically approved the Intoximeter 3000 test but rather had  

                                                                                                                                                                                 



simply delegated the breathalyzer-certification process to the Department of Health and  

                                                                                                                                                                                 

                                  34    And we reiterated that "Champion mandates that the defendant in a  

Social Services.                                                                                                   



license revocation proceeding has the constitutionally guaranteed right to challenge the  

                                                                                                                                                                                  

accuracy of the breath test independently."35  

                                                          



                            We addressed the issue again six years later in Haynes v. State, Department  

                                                                                                                                                               



              29            Id.  at 227.   



              30            Id.  



              31  

                                         

                            Id. at 230.  



              32            Id.  at 228.   



              33  

                                         

                            Id. at 230.  



              34            Id.  



              35            Id.  



                                                                                        -10-                                                                                 7438
  


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

                                       36  

of Public Safety                      .    In that case, unlike                           Barcott, the hearing officer expressly considered                                          



evidence of the Intoximeter 3000's margin of error; however, the hearing officer also                                                                                                                



relied on police testimony about the defendant's "appearance and behavior" to find that                                                                                                               



the defendant's breath-alcohol content must have been above the statutory limit despite                                                                                                       

                                                           37      On appeal we held this was error; we held that the test's  

inconclusive test results.                                                                                                                                                                        



"inherent margin of error" must invariably be applied in the defendant's favor absent  

                                                                                                                                                                                               



express legislative intent to the contrary, and therefore a breath-test result that could fall  

                                                                                                                                                                                                       



below the statutory limit when the inherent margin of error is applied "cannot serve as  

                                                                                                                                                                                                          

the basis for a license revocation" regardless of "[e]xtrinsic evidence of intoxication."38  

                                                                                                                                                                                                                 



We highlighted, however, the two possible interpretations of DUI statutes:  they may  

                                                                                                                                                                                       



"create an offense upon a test reading in excess of their statutory limit or upon an actual  

                                                                                                                                                                                                

                                                                                         39   We reiterated our conclusion in Barcott that the  

level of alcohol in excess of the limit."                                                                                                                                                               

                                                                           

legislature apparently intended the latter.40  But we emphasized that the legislature could  

                                                                                                                                                                                                  



have taken the other tack:  

                                                  



                                The legislature has the power to require the revocation of a  

                                                                                                                                                                            

                                driver's  license  on  the  basis  of  a  particular  test  result  or  

                                                                                                                                                                         

                                reading,  despite  its  inherent  margin  of  error,  when  the  

                                                                                                                                                                      

                                legislature  expressly  considers  that  margin  and  deems  it  

                                                                                                                                                                           

                                sufficiently negligible such that it may be disregarded.   In  

                                                                                                                                                                         

                                such circumstances, the test result is considered  tolerably  

                                                                                                                                                        

                                inaccurate,  and,  therefore,  the  Department  may  revoke  a  

                                                                                                                                                                           



                36              865 P.2d 753 (Alaska 1993).                           



                37              Id.  at 754.   



                38              Id.  at 756.   



                39              Id.  at 755 (emphasis in original).                      



                40              Id.  at 755-56.   



                                                                                                   -11-                                                                                            7438
  


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

                           license on the basis of the test result without regard to the                                                    

                           test's margin of error.                    [41]  



                           In   1996,   in   the  wake   of  Haynes,   the   Alaska   legislature  enacted  

                                                                                                                                                           



AS 28.40.060.   The statute, since renumbered as AS 28.90.020, provides that "if an  

                                                                                                                                                                        



offense described under [Title 28] requires that a chemical test of a person's breath  

                                                                                                                                                                



produce a particular result, and the chemical test is administered by a properly calibrated  

                                                                                                                                                         



instrument approved by the Department of Public Safety, the result described by statute  

                                                                                                                                                                

is  not  affected  by  the  instrument's  working  tolerance."42                                                               The  court  of  appeals  

                                                                                                                                                            



acknowledged the effect of this statutory change in Mangiapane v. Municipality of  

                                                                                                                                                                        

                       43   The court noted that the legislature had decided to reject our interpretation  

Anchorage .                                                                                                                                       



of the DUI offense in Haynes  - as based on the actual measure of alcohol in  the  

                                                                                                                                                                



person's blood or breath - in favor of criminal liability based on the test result:  "The  

                                                                                                                                                                  



fact that the driver's true blood-alcohol or breath-alcohol level may be slightly lower  

                                                                                                                                                                 



(due to the Intoximeter's acknowledged margin of error) is no longer relevant to the  

                                                                                                                                                                      

driver's guilt under AS 28.35.030(a)(2)."44  

                                                



                           A year later the court of appeals  rejected a defendant's argument that  

                                                                                                                                                                     



AS 28.40.060 violated his due process rights because it "allows the Department of Public  

                                                                                                                                                                



 Safety to approve any instrument, even one which is very inaccurate, to establish his  

                                                                                                                                                                       

level of intoxication."45                         The court of appeals concluded that the legislature must have  

                                                                                                                           



been well aware of the State's long-time use of the Intoximeter 3000, with a known  

                                                                                                                                                              



              41           Id.  at 755 (emphasis in original).            



              42           AS 28.90.020.   



              43           974 P.2d 427 (Alaska App. 1999).                        



              44           Id.  at 430.   



              45           Bushnell v. State                , 5 P.3d 889, 890 (Alaska App. 2000).                           



                                                                                  -12-                                                                            7438
  


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

margin of error of .01 percent, and must have "implicitly decided that a .01 percent                                                    

working tolerance was 'tolerably inaccurate.' "                                  46  



                       In Conrad v. State the court of appeals addressed "[w]hether the State must  

                                                                                                                                             



prove that a motorist's blood alcohol level was above the legal limit at the time of the  

                                                                                                                                                

testing or, instead, at the time the motorist operated or controlled the vehicle."47                                                          The  

                                                                                                                                              



court refined its decision in Mangiapane to make clear "that a defendant's guilt under  

                                                                                                          



AS 28.35.030(a)(2) hinges on the defendant's blood alcohol content at the time the  

                                                                                                                                                



defendant  operated  or  controlled  a  motor  vehicle";  the  result  of  a  chemical  test  

                                                                                                                                              



"administered to the defendant within the statutorily prescribed four hours . . . will create  

                                                                                                                                           



a presumption that the defendant's blood alcohol level was at least as high at the time the  

                                                                                                                                                



defendant operated or controlled thevehicle,"butthedefendant "may introduceevidence  

                                                                                                                                      



                                              48  

to rebut this presumption."                         

                       



                       In  response  to  the  court  of  appeals'  Conrad  opinion,  the  legislature  

                                                                                                                                   

                                         49  First, the legislature amended subsection (a)(2) to provide that  

amended AS 28.35.030.                                                                                                                          

                        



the driver's guilt could be determined solely by the result of a chemical test properly  

                                                                                                                                       



administered within four hours of driving regardless of the blood-alcohol level at the  

                                                                                                                                                

time  of  driving.50                Second,  the  legislature  added  subsection  (s),  which  precluded  

                                                                                                                       



            46         Id.  at  892.  



            47         54   P.3d   313, 314 (Alaska   App.   2002),   superseded   by   statute,   ch.   124,  



§§  25,  27,  SLA  2004,  as  recognized  in  Valentine  v.  State,  215  P.3d  319,  322-24  (Alaska  

2009).  



            48         Id. at 315.  

                                  



            49         See  Valentine, 215 P.3d at 322-24 (describing 2004 amendments).  

                                                                                                                  



            50         Ch. 124, § 25, SLA 2004 (inserting the language "or (2) and if" to introduce  

                                                                                                                                     

AS 28.35.030(a)(2), allowing chemical test result within four hours of driving to stand  

                                                                                                                                            

                                                                                                                              (continued...)  



                                                                       -13-                                                                 7438
  


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

defendants   from   introducing   a   delayed-absorption  defense   by   claiming   that   their  



chemical test results did not accurately measure their blood-alcohol level at the time of                                                               

driving.51  



                                                                                                                        52   A defendant was  

                                                                                                                                                    

                                                                                                               

                        We addressed these amendments in Valentine v. State.  

charged with DUI under both AS 28.35.030(a)(1) and (a)(2).53                                                        We called subsection  

                                                                                                                                        



(a)(1) the "under-the-influence" theory; this "makes it a crime to drive while under the  

                                                                                                                                                      

influence of alcohol, regardless of blood alcohol."54                                            Subsection (a)(2) we called the  

                                                                                                                                                     



"blood-alcohol-level" theory; this provides that "a person commits a DUI offense if the  

                                                                                                                                                      



person takes a chemical test within four hours of driving that detects a blood alcohol  

                                                                                                                                              



level of at least 0.08 percent, regardless of the person's blood alcohol at the time of  

                                                                                                                                                       

driving."55  The defendant in  Valentine argued that the amended statute's exclusion of  

                                                      



delayed-absorption  evidence  was  unconstitutional,  but  the  trial  court  rejected  his  

                                                                                                                                                     



argument, and the jury convicted him "using a general verdict form that did not specify  

                                                                                                                                              

                                                                                                                                               56    On  

whether he was convicted under subsection (a)(1), subsection (a)(2), or both."                                                                       

                                                                                                                                    



            50          (...continued)  



                                                                                                                  

alone in determining defendant's guilt); Valentine, 215 P.3d at 322-24.  



            51          Ch. 124, § 27, SLA 2004 ("[T]he consumption of alcohol before operating                                            



or driving may not be used as a defense that the chemical test did not measure the blood  

                                                                                                                                                 

alcohol  at  the  time  of  the  operating  or  driving.");   Valentine,  215  P.3d  at  324-25.  



            52          215 P.3d at 322-24.  

                                              



            53          Id. at 321.  

                                   



            54          Id. at 320.  

                                   



            55          Id.  



            56          Id. at 320-21.  

                                   



                                                                          -14-                                                                    7438
  


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

                                                                                                                                                    57  

appeal we reversed the conviction and remanded for a new trial.                                                                                          We held that although          



the subsection (a)(2) offense - the "blood-alcohol-level" theory - now depended                                                                                                      



solely on whether "the driver's chemical test result is 0.08 percent or higher within four                                                                                                         



hours of driving," the subsection (a)(1) offense - the "under-the-influence" theory -                                                                                                                  



                                                                                                                                                                                                         58  

continued to depend on whether "the driver was impaired at the time of driving."                                                                                                                               



Therefore, "[w]hether a chemical test result accurately indicates a driver's blood alcohol  

                                                                                                                                                                                            



content at the time of driving continues to be relevant to prosecutions under subsection  

                                                                                                                                                                                    



(a)(1) if they rely on chemical test results," and it would violate due process to deny the  

                                                                                                                                                                                                      

defendants the opportunity to challenge those results.59  

                                                                                                                                    



                                2.	            AS  28.35.165(c)  does  not  violate  due  process  by  allowing  a  

                                                                                                                                                                                                         

                                               hearing  officer  to  rely  solely  on  the  result  of  a  properly  

                                                                                                                                                                                     

                                                administered breath test.  

                                                                                                     



                                Barnebey argues that under this line of case law, "fundamental fairness  

                                                                                                                                                                                          



requires that [defendants] be allowed to challenge the reliability and credibility of the  

                                                                                                                                                                                                     



breath test during . . . license revocation proceeding[s]," and that  Valentine, our most  

                                                                                                                                                                                                 



recent case addressing this issue, requires recognition of the "well-established scientific  

                                                                                                                                                                                       



fact" that the DataMaster has an inherent margin of error.  But Barnebey oversimplifies  

                                                                                                                                                                           



our decision in Valentine, which maintained the important distinction between offenses  

                                                                                                                                                                                         



dependent on actual blood-alcohol level and those dependent on a particular test result.  

                                                                                                                                                                                                               



                                Indeed,  Valentine's discussion of due process controls our decision of  

                                                                                                                                                                                                       



Barnebey's claim here.   In  Valentine we followed the issue-framing used by Justice  

                                                                                                                                                                                            



Ginsburg in her concurrence in Montana v. Egelhoff, where she explained:  

                                                                                                                                                                                   



                57             Id.  at 327.   



                58             Id.  at 326.   



                59             Id.  at 326-27.   



                                                                                                  -15-	                                                                                          7438
  


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

                                  If [the statute] is simply a rule designed to keep out "relevant,                                                              

                                  exculpatory evidence," . . . [the statute] offends due process.                                                                                          

                                  If it is, instead, a redefinition of the mental-state element of                                                                                  

                                  the offense, on the other hand, . . . [the] due process concern                                                                     

                                  "would not be at issue, for a state legislature certainly has the                                                                               

                                  authority to identify the elements of the offenses it wishes to                                                                                    

                                  punish," and to exclude evidence irrelevant to the crime it has                                                                               

                                  defined.[60]  



Applying this analysis to the legislature's 2004 amendments, we held in  Valentine that  

                                                                                                                                                                                                                  



"[t]he Alaska Legislature properly used its broad discretion to redefine the elements" of  

                                                                                                                                                                                                                       



subsection (a)(2), basing criminal liability solely on the result of a properly administered  

                                                                                                                                                                                           

chemical test of .08 or higher within four hours of driving.61  Because delayed-absorption  

                                                                                                                                                                           



evidencewas irrelevant tothecrime as legislatively defined, excluding suchevidencedid  

                                                                                                                                                                                                                    

not violate due process.62  

                                        



                                  In this appeal we look to AS 28.15.165(c), the administrative revocation  

                                                                                                                                                                                                



statute, for the definition of the offense at issue. DMV's authority to revoke a license has  

                                                                                                                                                                                                                    



always  been  statutorily  phrased  as  dependent  on  the  "result"  of  a  chemical  test;  

                                                                                                                                                                                                               



AS 28.15.165(c) differs from the DUI criminal statute in that it does not include an  

                                                                                                                                                                                                                     



alternative "under the influence" provision like AS 28.35.030(a)(1).  A likely rationale  

                                                                                                                                                                                                     



for  the  difference  appears  in  legislative  history.                                                                            A  police  officer  acting  under  the  

                                                                                                                                                                                                                   



authority of AS 28.15.165(b) may confiscate a driver's license, and, according to the  

                                                                                                                                                                                                                   



statutory language, a test result is sufficient to justify this action. At a hearing on the bill  

                                                                                                                                                                                                                   



creating the administrative revocation remedy, the General Counsel for the Alaska Court  

                                                                                                                                                                                                              



                 60               Id.   at   326   (quoting   Montana   v.   Egelhoff,   518   U.S.   37,   56-57   (1996)  



(Ginsburg, J., concurring)).         



                 61               Id.
  



                 62               Id.
  



                                                                                                         -16-                                                                                                  7438
  


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

System testified that having preliminary hearings handled by the Department of Public                                                     



                                                                                                                       63  

Safety rather than the Court System would decrease costs and delays;                                                                            

                                                                                                                           at the time, the  

                                                                                                                   64  An invited expert  

                                                                                                                                           

                                                                                                     

Court Systemwas experiencing long delays in calendaring hearings. 



testified that increasing the severity of penalties would have little deterrent effect without  

                                                                                                                                         

an increase in  the certainty of punishment.65                                     A municipal prosecutor  testified that  

                                                                                                                                              



suspending or revoking drivers' licenses was a more effective deterrent to drunk driving  

                                                                                                                                         

than  jail  time.66              A  university  sociologist  testified,  "Deterrence  works  when  the  

                                                                                                                                               



punishment is[] certain, swift, and severe.  Administrative revocations generally meet  

                                                                                                                                             

                            67   The legislature could reasonably have been reacting to this testimony  

[these] criteria." 

                                                                                                                                     



when  it  decided  to  base  revocation  on  something  that  an  officer  could  determine  

                                                                                                                                   



relatively quickly - a breath-test result - and not actual blood-alcohol content, which  

                                                                                                                                           



could not be determined definitively without weighing the accuracy and reliability of the  

                                                                                                                                                



devices  used  to  measure  it.                        Administrative  hearings,  if  requested,  are  similarly  

                                                                                                                                     



            63         Minutes, Sen. Judiciary Comm. Hearing on H.B. 6, 13th. Leg., 1st Sess.,  



                                                                                                                                           

Tape 1, Side A, No. 000 (May 27, 1983) (testimony of Karla Forsythe, Alaska Court  

                             

System General Counsel).  



            64         Minutes, Sen. State Affairs Standing Comm. Hearing on H.B. 6, 13th Leg.,  

                                                                                                                                             

 1st Sess., Tape 2, Side 1, No. 202 (May 10, 1983) (testimony of Karla Forsythe, Alaska  

                                                                                                                                          

Court System General Counsel).  

                                        



            65         Minutes, Sen. State Affairs Standing Comm. Hearing on H.B. 6, 13th Leg.,  

                                                                                                                                             

 1st Sess., Tape 1, Side 1, No. 173 (Apr. 9, 1983) (testimony of Dennis Kelso, Altam  

                                                                                                                                          

Associates).  



            66         Id.  at Tape 3, Side 1, No. 286 (testimony of Allen Bailey, Anchorage  

                                                                                                                                  

Municipal Prosecutor).  

                    



            67         Minutes, Sen. State Affairs Standing Comm. Hearing on S.B. 61, 13th.  

                                                                                                                                            

Leg., 1st Sess., Tape 1, Side 2, No. 406 (Apr. 12, 1983) (testimony of Dr. Larry Ross,  

                                                                                 

SUNY Buffalo).  

              



                                                                       -17-                                                                 7438
  


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

streamlined by the narrow focus on the test result and whether the law enforcement                                                                             

officer had probable cause.                               68  



                             The  legislature's  enactment  of  AS  28.90.020  (originally  numbered  

                                                                                                                                                                   



AS 28.40.060) clarified that a testing machine's "working tolerance" was not to be  

                                                                                                                                                                                     



considered as affecting the result under AS 28.35.030(a)(2).  Further, the evolution of  



Alaska's DUI statutes and judicial interpretations described above -ultimately defining  

                                                                                                                                                                         



the offense under AS 28.35.030(a)(2) as dependent solely on the result of a properly  

                                                                                                                                                                       

administered chemical test69 -supports our conclusion here. And "while AS 28.35.033  

                                                                                                                                                                     



creates a presumption of the chemical test's validity, 'it does not make those [test] results  

                                                                                                                                                                             

unassailable.' "70   Other evidence may call "into question the reliability or validity of [a]  

                                                                                                                                                                                    

chemical breath test result."71   However, because margin-of-error evidence is irrelevant  

                                                                                                                                                                      



to the statutory basis for revocation, excluding that evidence in revocation cases - or,  

                                                                                                                                                                                    



as here, declining to find that a result within the margin of error is exculpatory - does  

                                                                                                                                                                                 



not violate due process rights.  

                                                    



              68             See  AS 28.15.166(g).   



              69            Haynes v. State, Dep't of Pub. Safety                                          , 865 P.2d 753, 755-56 (Alaska 1993)                               



(noting that the legislature had the power to expressly consider margin-of-error evidence  

                                                                                                                                                                        

and "deem[] it sufficiently negligible such that it may be disregarded");                                                                                       Valentine v.   

State, 215 P.3d 319, 326 (Alaska 2009) (holding that "[t]he legislative amendment to                                                                                                  

subsection (a)(2) . . . . rendered a defendant's blood alcohol at the time of driving                                                                                     

irrelevant and thus inadmissible"); Bushnell v. State, 5 P.3d 889, 891-92 (Alaska App.  

                                                                                                                                                                                

2000) (holding that the legislature "implicitly found that a working tolerance of .01  

                                                                                                                                                                                   

percent of a properly calibrated instrument was 'tolerably inaccurate' ").  

                                                                                                                                                       



              70            Morris v. State, Dep't of Admin., Div. of Motor Vehicles, 186 P.3d 575, 579  

                                                                                                                                                                                   

(Alaska 2008) (alteration in original) (quoting Keel v. State, 609 P.2d 555, 557 (Alaska  

                                                                                                                                                                          

 1980)).  

                  



              71            Id.  



                                                                                         -18-                                                                                  7438
  


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

                                 Barnebey also argues that the hearing officer's decision was not supported                                                                                   



by substantial evidence given both the breath-test result within the DataMaster's margin                                                                                                             



of error and the independent chemical test result of .073 g/100mL.                                                                                                 As explained above,                



however, AS 28.15.165(c) depends only on the result of a properly administered test                                                                                                                          



under   AS   28.35.030(a)(2),   and   margin-of-error   evidence   is   not   relevant   to   this  



determination.   Alaska Statute 28.15.166(g)(2) directs the hearing officer to determine                                                                                                     



whether the chemical test produced a particular result, and the hearing officer did so in                                                                                                                        



Barnebey's case.                              As for the alleged conflict between the breath-test result and the                                                                                             



independent chemical test result,                                                     the weight given                             to   each   test "is a factual matter                             

                                                                                      72  The hearing officer explained why she did not find  

properly left to the hearing officer."                                                                                                                                                                      

the test results to be conflicting.73                                                Her decision was supported by substantial evidence.  

                                                                                                                                                                                                                        



                                 3.	             The  revocation  statute  does  not  provide  unfair  notice  in  

                                                                                                                                                                                                              

                                                 violation of due process.  

                                                                                            



                                 "[D]ueprocess requires that any actioninvolving deprivation oflife, liberty  

                                                                                                                                                                                                      



or property by adjudication must be preceded by notice and opportunity for hearing  

                                                                                                                                                                                                   

appropriate to the nature of the case."74  

                                                                                                                                                                                                                 

                                                                                                       Barnebey argues that it is "unfair notice" to  



                                                                                                                                                                                               

expect a person "to know what an inherently-inaccurate machine will say that a person's  



                                                                                                                                                                                                             

blood-alcohol level is."  In support of his cursory argument he cites only Valentine, and  



                 72	             Id.  at 581.               



                 73  

                                                                                                                                                                                                            

                                 The  hearing  officer  found  that  the  independent  test  result  was  in  fact  

                                                                                                                                                                                                                

consistent with the DataMaster result, showing that, in between the tests, "there was an  

                                                                                                                                                                                                    

elimination due to the [admitted] consumption earlier in the evening."  See id. at 579-80  

                                                                                                                                                                                                             

(describing alcohol elimination process as explanation for inconsistency between test  

                                                                                                                      

results taken approximately 30 minutes apart).  



                 74              Philip J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                                      

264 P.3d 842, 846 (Alaska 2011) (alteration in original) (quoting In re Estate of Fields,  

                                                                                                                                                                                                     

219 P.3d 995, 1009 (Alaska 2009)).  

                                                                       



                                                                                                      -19-	                                                                                              7438
  


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

we therefore interpret his argument as similar to the one made unsuccessfully in that                                                                                                        



case:   not "that the language of the statute is unconstitutionally imprecise," but rather                                                                                     



"that the statute violates due process because it is too difficult for a motorist who chooses                                                                                       

to drink alcohol before driving to gauge if . . . his conduct will violate the statute."                                                                                                    75  



                              Alaska  Statute  28.15.165(c)  clearly  gives  notice  that  the  DMV  "shall  

                                                                                                                                                                                       



revoke  [a]  person's  license"  if  a  chemical  test  produces  "a  result  described  in  

                                                                                                                                                                                                        



AS 28.35.030(a)(2)."   (Emphasis added.)  The referenced statute, in turn, clearly gives  

                                                                                                                                                                                          



notice of the result that will lead to revocation:  "0.08 percent or more by weight of  

                                                                                                                                                                                                 



alcohol in the person's blood or . . . 0.08 grams or more of alcohol per 210 liters of the  

                                                                                                                                                                                               



person's breath."  Finally, AS 28.90.020 clearly gives notice that "the result described  

                                                                                                                                                                                



by statute is not affected by the instrument's working tolerance."  Because the statutory  

                                                                                                                                                                                  



standards are clear, the question is whether the public can reasonably be expected to  

                                                                                                                                                                                                 

conform their conduct to those standards.76  

                                                                        



                               In        Valentine,                 the         court            of       appeals               rejected               the         argument                  that  

                                                                                                                                                                                          



AS 28.35.030(a)(2) violated due process because it would be difficult for a driver to  

                                                                                                                                                                                                 



predict when - within the four hours allowed for the chemical test - he might reach  

                                                                                                                                                                    

the proscribed limit of 0.08 blood-alcohol content.77                                                                       The court of appeals cited cases  

                                                                                                                                                                                          

from other jurisdictions78  and quoted one opinion holding that "[w]here a statute gives  

                                                                                                                                                                                          



fair notice of what is to be avoided or punished, it should not be declared void for  

                                                                                                                                                                                               



               75              155 P.3d 331, 340 (Alaska App. 2007),                                                     rev'd on other grounds                                , 215 P.3d     



319, 327 (Alaska 2009).                  



               76             See Gottschalk v. State, 575 P.2d 289, 290 (Alaska 1978) ("Criminal laws  

                                                                                                                                                                                            

must give the ordinary citizen fair notice of what is and what is not prohibited.  People  

                                                                                                                                                                                      

should not be made to guess whether a certain course of conduct is criminal.").  

                                                                                                                                                           



               77              155 P.3d at 339-41.  

                                                                               



               78             Id. at 340 n.33.  

                                                      



                                                                                              -20-                                                                                        7438
  


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

vagueness simply because it may be difficult for the public to determine how far they can                                                    

go before they are in actual violation."                         79                                                                         

                                                                     Given Barnebey's failure to develop this due  



                                                                                                                                               

process argument, we see no reason to depart from the court of appeals' reasoning in  



                                                                                                                                        

 Valentine. When a statute gives fair notice of the proscribed limits, "a person who drinks  



                                                                                                                                 

a substantial amount of alcohol . . . is put on notice that he chooses to drive at his own  



           80  

peril."          



           B.	         It  Was  Error  To  Award  Attorney's  Fees  To  The  DMV  Without  

                                                                                                                                  

                       Consideration Of AS 09.60.010(c)(2).  

                                                              



                      Barnebey contends that the superior court erred when it awarded attorney's  

                                                                                                                                  



fees  to  the  DMV  as  the  prevailing  party  on  appeal  without  "consider[ing]  and  

                                                                                                                                           



address[ing] Barnebey's reliance upon AS 09.60.010(c) in the face of his certainly non- 

                                                                                                                                           



frivolous constitutional claims."  Alaska Statute 09.60.010(c) creates a "constitutional  



litigant" exception to the usual rules governing awards of attorney's fees and costs to the  

                                                                                                                                              

prevailing  party.81  

                                                                                                                                             

                                     In  an  appeal  "concerning  the  establishment,  protection,  or  



                                                                                                                                             

enforcement of a right under the United States Constitution or the Constitution of the  



                                                                                                                                   

State of Alaska," a court may not order the constitutional claimant to pay the opposing  



                                                                                                                                                

party's attorney's fees if the claimant "did not prevail in asserting the right, the . . .  



                                                                                                                                  

appeal asserting the right was not frivolous, and the claimant did not have sufficient  



                                                                                                                                       

economic  incentive  to  bring  the  .  .  .  appeal  regardless  of  the  constitutional  claims  



           79         Id.  at  340  (quoting  United  States  v.  Skinner,  973  F.  Supp.  975,  980  (W.D.  



Wash. 1997) (quoting Fuenning v. Superior Court ex rel. Maricopa County,  680 P.2d  

 121,   129  (Ariz.   1983))).  



           80         Id. (quoting Bohannon v. State, 497 S.E.2d 552, 556 (Ga. 1998)).  

                                                                                                                         



           81         See Manning v. State, Dep't of Fish & Game, 420 P.3d 1270, 1283 (Alaska  

                                                                                                                                      

2018).  



                                                                     -21-	                                                               7438
  


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

involved."82  



                                   It is undisputed that Barnebey asserted a constitutional right to present                                                                                                   



margin-of-error evidence and that he did not prevail on his claim.                                                                                                                     The DMV also                    



concedes that Barnebey's appeal was not frivolous. At issue is only the third element of                                                                                                                                     



the "constitutional litigant" exception:                                                                  whether Barnebey had "sufficient economic                                                     



incentive" to bring the appeal regardless of the constitutional basis of his claims.                                                                                                             



                                   "A litigant has sufficient economic incentive to bring a claim when it is                                                                                                                  



brought primarily to advance the litigant's direct economic interest, regardless of the                                                                                                                                   

                                                    83  We determine the claim's primary purpose by looking to the facts  

nature of the claim."                                                                                                                                                                                                  



of the case and by examining "the nature of the claim and relief sought and the direct  

                                                                                                                                                                                                                   

economic interest at stake."84   The issue here is whether Barnebey's interest in retaining  

                                                                                                                                                                                                            

                                                                                                                                                                        85 constitutes sufficient  

his driver's license, undoubtedly an "important property interest,"                                                                                                                                       

                                                                                                                                                 



economic incentive to bring a claim under AS 09.60.010(c)(2).  

                                                                                                                           



                                   The DMV argues that Barnebey was primarily motivated to appeal out of  

                                                                                                                                                                                                                             



"concern for his own economic livelihood." Barnebey worked in land surveying; his job  

                                                                                                                                                                                                                           



required that he drive to various work locations throughout the day.   As Barnebey  

                                                                                                                                                                                                        



explained in an affidavit, "as a result of the license revocation . . . , my ability to obtain  

                                                                                                                                                                                                                  



employment has been drastically curtailed and I am accordingly suffering economic  

                                                                                                                                                                                                        



hardship."  Another land surveyor and co-worker submitted an affidavit in support of  

                                                                                                                                                                                                                             



                  82               AS 09.60.010(c)(2).   



                  83               Alaska Conservation Found. v. Pebble Ltd. P'ship                                                                                    , 350 P.3d 273, 281-82                   



                      

(Alaska 2015).  



                  84               Id. at 282.  

                                                  



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

                                                                                                                                                                                                                       

 1130, 1135 (Alaska 2001) (quoting Champion v. Dep't of Pub. Safety, 721 P.2d 131, 133  

                                                                                                                                                                                                                         

(Alaska 1986)).  

                      



                                                                                                            -22-                                                                                                     7438
  


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

Barnebey's need for a driver's license, explaining that "[a]ny limitation of [Barnebey's]                                                                                                                                                                    



 driving privileges . . . severely lessens his ability to obtain employment" in the field and                                                                                                                                                                                                



that even if he finds a surveying job, his "earning capacity would be restricted" if he did                                                                                                                                                                                                   



not have a license.                                               



                                              Barnebey argues, however, that he is "seeking only to retain his basic                                                                                                                                                                  



 driver's license," not a "commercial driver's license." He contends that "the importance                                                                                                                                                                          



 of a driver's license extends far beyond mere economics so that its revocation has                                                                                                                                                                                                         



profound impacts on the family, medical, social, and political aspects of life as a human                                                                                                                                                                                      



being," and he urges us to "hold categorically that persons raising constitutional claims                                                                                                                                                                                          



 in the context of exercising their rights to drive . . . are entitled to the benefits and                                                                                                                                                                                                 



protections of AS 09.60.010, just as the Court has essentially held . . . when subsistence                                                                                                                                                                        



rights are at issue."                                               



                                              We held in                             Alaska Conservation Foundation                                                                                      that "protecting subsistence                             

                                                                                                                                                                                                             86   As Barnebey points out,  

uses is not sufficient economic incentive to bring a lawsuit."                                                                                                                                                                                                                              



 for those living on the road system a driver's license has many non-commercial uses; for  

                                                                                                                                                                                                                                                                                                



many people, access to the grocery store, the doctor's office, church, and political events  

                                                                                                                                                                                                                                                                                    



may depend on their ability to drive.  Driving may be necessary for engaging in the  

                                                                                                                                                                                                                                                                                              



 social life of the community.  It may be difficult in some cases to differentiate between  

                                                                                                                                                                                                                                                                            



thenon-economic benefits citizens derivefromtheirdrivers' licenses and thesubsistence  

                                                                                                                                                                                                                                                                  



uses that we have found are not enough to satisfy the "sufficient economic incentive"  

                                                                                                                                                                                                                                                                     



 element of the constitutional claimant statute.  

                                                                                                                                    



                                              The superior court did not address Barnebey's AS 09.60.010(c) argument  

                                                                                                                                                                                                                                                                         



 in its order awarding fees.  In Titus v. State, Department of Administration, Division of  

                                                                                                                                                                                                                                                                                                  



Motor Vehicles, Titus, like Barnebey, relied on AS 09.60.010(c)(2) to oppose an award  

                                                                                                                                                                                                                                                                                    



                       86  

                                                                                       

                                              350 P.3d at 286.  



                                                                                                                                              -23-                                                                                                                                                     7438  


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

                                  87  

of   attorney's   fees.                 The   superior  court  in   that   case,   as   here,   did   not   address   the  



                                                                                               88  

constitutional-claimant argument in its award of fees.                                                                                             

                                                                                                   We held in Titus that "[i]t was  



                                                                                                                                                     

error not to consider Titus's AS 09.60.010 arguments" and vacated the attorney's fee  

                                                                                                                                   89  We do the  

                                                                                                                                                     

                                                                                                          

award, remanding the issue to the superior court for further consideration. 



same here. On remand the superior court should specifically consider whether Barnebey  

                                                                                                                                         



had sufficient economic incentive - beyond the usual non-commercial automobile use  

                                                                                                                                                    



endemic to a road-system society - to bring his appeal.  

                                                                                        



V.          CONCLUSION  



                        The hearing officer's decision to revoke Barnebey's driver's license is  

                                                                                                                                                       



AFFIRMED.  The superior court's award of attorney's fees is VACATED, and the case  

                                                                                                                                                   



is REMANDED to the superior court for further consideration of the attorney's fees  

                                                                                                                                                   



issue in accordance with this opinion.  

                                                     



            87          305 P.3d 1271, 1276 (Alaska 2013).                    



            88         Id.  at 1282.   



            89         Id.  at 1283.   



                                                                         -24-                                                                    7438
  

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