Wednesday, March 30, 2011

DUI Appeal - Alaska DUI Hearing Officer Bars Evidence Attacking Illegal Stop

In Alvarez v. State of Alaska, --- P.3d ----, 2011 WL 923224 (Alaska) the Supreme Court was asked to decide a number of issues, including whether the exclusionary rule applied to suspension hearings, whether the hearing officer abused the process by refusing to authorize subpoenas, and whether a 2 1/2 year delay before a suspension hearing denied the defendant due process of law.

In answering the issue of the delay, the facts indicated that on September 28, 2003, Alvarez agreed to take a breath test after a DUI arrest, but did not produce a readout until the fifth try. Alvarez recorded a breath alcohol concentration of .091 percent. It appears that at least one other officer was in the room with Perez to help him use the breathalyzer. Officer Perez issued an order revoking her license and giving her notice that the revocation would be effective in seven days in the absence of a request for an administrative hearing. Alvarez was subsequently charged with driving under the influence. She timely requested a hearing, and as a result was issued a temporary license. The hearing was scheduled for six months later. Sometime after the cop arrested the defendant, he was deployed to Iraq. On February 26, 2004, Alvarez wrote to the hearing officer requesting subpoenas for the Ketchikan Public Safety Director and the Records Custodian at the Alaska State Highway Department in Ketchikan. In the same letter, Alvarez also asked her if Perez would be subpoenaed. The hearing officer denied Alvarez's requests for subpoenas, and informed her that she did not intend to subpoena Perez.

The first hearing took place on March 22, 2004. Alvarez was present, and she called a witness to testify that she was sober the night she was arrested. She also testified on her own behalf. The hearing officer decided to continue the hearing until Perez's return from Iraq. The hearing was ultimately rescheduled for March 10, 2006, almost two years later, once Perez had returned. On March 1, 2006, just nine days before the hearing, an attorney entered an appearance on behalf of Alvarez. He immediately requested a continuance to review the evidence. The next day the hearing officer denied the request. On March 9, one day before the hearing, counsel for Alvarez requested the hearing officer to subpoena the evidence custodian for the Ketchikan Police Department, and the hearing officer denied his request. The hearing went ahead telephonically on March 10, but Perez, who was supposed to call in, did not. The hearing officer rescheduled the hearing for April 27.

Perez appeared telephonically at the April 27 hearing. The hearing officer had only two questions for Perez. Alvarez then thoroughly cross-examined Perez, whose memory of events varied. During the hearing, the hearing officer prevented Alvarez from asking Perez questions concerning whether Perez had reasonable suspicion to stop Alvarez. The hearing officer reasoned that the exclusionary rule does not apply to license suspension proceedings, and therefore it was irrelevant whether or not Perez had reasonable suspicion to stop Alvarez. The hearing officer suspended Alvarez's license for 90 days.

On appeal, the defense raised the issue of whether the delay violated the defendant's due process rights. The due process clause entitles an individual to "a meaningful hearing at a meaningful time". Factors to consider in determining whether due process has been violated fall under the Mathews v. Eldridge framework for evaluating whether administrative proceedings satisfy due process. These include (1) the private interest that the official action affects, (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional safeguards, and (3) the government's interest, including fiscal and administrative burdens, in implementing additional safeguards.
The appeals court found that the due process rights of the defendant were not violated, relying heavily on the fact that the defendant was granted a temporary license during the delay. Additionally, the fact that much of the evidence was audio and video recorded also militated against the prejudice of 'faded memories'.
Insofar as the exclusionary rule was concerned, the court found without any logical explanation, that a driver could not challenge the lawfulness of the initial stop (which they suggest involves the exclusionary rule) in a suspension hearing, except where police action “shocks the conscience, or is of a nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom.” In a footnote, the opinion also stated that there may also be an application of the exclusionary rule "where a Fourth Amendment violation stems from a lack of probable cause for a DWI arrest, exclusion may well be mandated because probable cause is an affirmative statutory element of the offense of refusal and is an affirmative element for proof in the license revocation proceeding. Second, ... a search for blood evidence in direct violation of ... statutory prohibitions would probably require exclusion of the test results in a subsequent administrative license revocation proceeding..."

Another interesting argument by the defense that also was rejected, was that the court should have considered the rehabilitation of the driver over the 2 1/2 year delay by the time the suspension was issued. She based the argument on an Alaska case that a driver's license suspension for drunk driving is “remedial” rather than “punitive” because of the direct relationship between the suspension and the State's goal of removing unsafe drivers from the road. The court stated:

"Suspending the driver's license, even after a long delay in which the driver drove unexceptionably, still furthers the administrative goal of protecting the public and removing unfit drivers from the road. The suspension serves to deter future unfit driving, and creates a record for the DMV of a driver's overall fitness. The DMV has wide latitude to carry out its mandate to protect the public from unfit drivers, and we conclude that this suspension is sufficiently related to the DMV's goals that it is “remedial” rather than “punitive,” despite the delay."

NOTE: Overall, there was nothing more that the hearing officer could have done to thwart the defendant's attempt at a fair hearing - from denying subpoenas, to delaying the hearing, and then refusing to sanction the noncompliance of the State. This case is an example of jurisprudence run amok for the purpose of achieving one goal - the removal of accused (but not necessarily guilty) drunk drivers from the road.

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