Hartman v. State, Department of Administration, Division of Motor Vehicles

152 P.3d 1118, 2007 Alas. LEXIS 7, 2007 WL 196370

• Court: Alaska Supreme Court
• Decided: January 26, 2007
• Docket: S-11823
• Status: Published

Opinions

OPINION

FABE, Justice.

I. INTRODUCTION

This is an administrative appeal of a Department of Motor Vehicles (DMV) decision revoking Morgan Hartman's Alaska driver's license for driving while under the influence (DUI). At the license revocation hearing, the arresting officer relied on a recording of the conversation he had had with Hartman before the arrest. Hartman, a pro se litigant who had unsuccessfully sought a continuance to obtain further evidence, did not have a copy of the recording, and the hearing officer made no effort to assist Hartman in obtaining the recording. Based in part on the officer's recollection of the recording, the hearing officer revoked Hartman's license for ninety days and the superior court affirmed.

Hartman raises four issues on appeal. First, he claims that the stop leading to his arrest was unconstitutional. Second, he maintains that the hearing officer abused her discretion by denying his request for a continuance. His third claim-closely related to the second-is that he was denied due process of law by the State's failure to furnish a copy of the recording at his hearing. Finally, he argues that DMV failed to provide notice of the procedures that it would follow. Because the hearing officer erred by failing to inform Hartman of the correct procedures for obtaining the central piece of evidence in the case, even though he was clearly attempting to obtain potentially exculpatory evidence, we reverse the judgment of the superior court and remand to DMV for further proceedings consistent with this opinion.

II. FACTS AND PROCEEDINGS

A. - Hartman's Arrest

On August 29, 2003, State Trooper Tim Tuckwood responded to a report from Tim Somerlot, a Delta Junction resident, that a group of juveniles had abandoned a car in a ditch and left the seene in a "tan Ford Taurus-type vehicle" According to Somerlot, the group consisted of two males and two females.

Tuckwood investigated the abandoned vehicle, finding that it was a dented, white Honda Accord with fluid leaking from the radiator. The windows were open, and Tuckwood noticed that the interior "had a strong odor of alcohol." Although the car had no license plate, Tueckwood ran the vehicle identification number and determined that it belonged to John Hartman, who lived nearby. After unsuccessfully attempting to contact Hartman, Tuckwood called a towing company. Before the tow truck arrived, Tuckwood saw "a small tan vehicle similar to a Ford Taurus [drive] by," and noticed that "several people" were in the car. One of the passengers was Morgan Hartman, the son of John Hartman.

Tuckwood stopped the car and questioned Hartman. According to Tuckwood, Hartman appeared to be intoxicated, "due to a strong odor of alcohol, ' bloodshot eyes, slurred speech, and a stagger[ing] step." He failed three roadside sobriety tests, and refused to take any others. When asked about the Honda, Hartman admitted to having driven it, and said that he had "parked it in the ditch" when the radiator overheated. According to Tuckwood, Hartman claimed to have been alone when driving, but two of the passengers from the Ford Taurus maintained that they had been in the Honda when Hartman was driving. One of the passengers, Mariah Morris, said that she knew Hartman was intoxicated.¹

Tuckwood arrested Hartman for driving while under the influence. A breath sample taken from Hartman showed an alcohol concentration of .158g/210L, an amount substantially higher than the legal limit of .08. Hartman declined to take a second test, and was issued a citation for underage drinking. Before being released on bail, he was given notice that his license would be suspended, and informed that he could challenge the suspension at an administrative hearing.

B. Administrative Hearing

Hartman requested a hearing, and one was scheduled for October 21, 2008. On October 15 he requested that the hearing be postponed "due to the fact that [he had] so far been unable to gather all the evidence that [he] need[ed]." He also requested that Tuckwood be subpoenaed, and stated that his defense would be based on AS 04.16.051(b) ² and Snyder v. State, Department of Public Safety, Division of Motor Vehicles.³ On October 21 Hartman participated telephonically and pro se in the hearing. At the beginning of the hearing, the request for a continuance was denied ⁴ on the ground that Hartman could have requested discovery, but did not.

The hearing officer heard testimony from Tuckwood, Hartman, Hartman's mother, and Crystal Mercer, the driver of the Ford Taurus. Tuckwood's initial testimony mirrored his police report. Specifically, he claimed that Hartman "tried to tell {him] that he wasn't intoxicated because he doesn't drink."

Hartman testified that he was contesting the license revocation because he did not become intoxicated until after he left the Honda. He claimed that he was driving the Honda off-road ⁵ with two friends, and that he parked it when the transmission malfune-tioned. At that point, he asserted, he had not yet had anything to drink. After the car broke down, Hartman and his friends began walking to Hartman's house, but soon saw Mercer pass by in a tan Ford Taurus. Mercer gave them a ride, and Hartman invited all of them to have dinner with his family. Hartman had several beers during dinner.⁶ The four then left in the Ford Taurus, with Mercer driving. When they were pulled over, Hartman testified, he told Tuckwood that he "was drinking after [he] drove," a claim that Tuekwood "must have misinterpreted."

The hearing officer called Tuckwood again, and asked if he had a tape recording of the contact and arrest. Tuckwood responded in the affirmative, and the hearing officer noted that she did not have a copy of it. Tuckwood proceeded to testify about the tape, claiming that it supported his account of what Hartman had said. Hartman did not have a copy of the tape and was thus unable to verify Tuckwood's recollection of its content or cross-examine Tuckwood about it.

Hartman's mother corroborated her son's claim that he had been drinking at dinner but not earlier. She also described Hartman's earlier unsuccessful attempt in his eriminal case to procure a tape recording of the arrest and his public defender's response that no tape existed:

And as far as the tapes, Ma'am, supposedly Officer Tuckwood said he-there's a tape in existence that said [Hartman] said he was drinking. But then there is no tape. There's no such thing. We tried to get the tape. [Hartman] tried to get a copy of it from his public defender. The reason why he can't is because there is none. It doesn't exist.

On October 30 the hearing officer issued a decision. In her findings, she noted that Hartman was the driver of the Honda, and that Hartman was "highly intoxicated" when Tuckwood arrested him. She also found "that the contact tape does exist" and that Tuckwood's testimony about its contents was credible. Based on these findings, the breath alcohol test, and her negative assessment of Hartman's credibility, the hearing officer determined that Hartman had been driving while under the influence. She therefore affirmed the ninety-day revocation of his license.

Hartman appealed this decision to the superior court. The superior court held that Tuckwood had reasonable suspicion to make the stop and probable cause to arrest Hartman. It also determined that DMV's failure to furnish Hartman a copy of the recording absent any request did not violate Hartman's right to due process. Similarly, it ruled that Tuckwood's reliance on a recording that had not been furnished to Hartman did not violate Hartman's rights under the confrontation clause, because Tuckwood "merely used it to confirm his memory of Hartman's statements." Finally, the superior court held that the hearing officer did not abuse her discretion by denying Hartman's request for a continuance. For these reasons, the superior court affirmed the hearing officer's decision. Hartman's subsequent petition for rehearing was denied, and this appeal followed.

IIL - DIESCUSSION

A. Standard of Review

When reviewing license revocation hearings, we apply the standard of review set forth in Nevers v. State, Department of Administration:

We review license revocation hearings 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 in the record. Where the superi- or court acts as an intermediate court of appeals, we independently review the hearing officer's decision. For legal questions not involving ageney expertise, we apply the substitution of judgment standard. We also review constitutional questions de novo, and will adopt the rule of law that is most persuasive in light of precedent, reason, and policy.[⁷]

B. Legality of the Investigatory Stop

Hartman first argues that the investigatory stop of the tan Ford Taurus was unconstitutional because it was not justified by reasonable suspicion.⁸ As a result, he claims, this evidence should have been suppressed.

The exclusionary rule provides that "evidence obtained from an unconstitutional search or seizure is inadmissible and must be excluded.⁹ Although this rule "generally does not apply to license revocation proceedings," ¹⁰ we have held that an exception applies in certain contexts, such as "police misconduct which shocks the conscience, or is of a nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom." ¹¹ In addition, "where a Fourth Amendment violation stems from a lack of probable cause for a DUI 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." ¹² But we need not reach the applicability of exceptions to the general rule in this case because the investigative stop was not an unreasonable search or seizure.

In Alaska, a police officer may make an investigatory stop if the officer has "2 reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred.¹³ Reasonable suspicion exists where the totality of the cireumstances indicates that there is a "substantial possibility that conduct [giving rise to a public danger] has occurred, is occurring, or is about to occur." ¹⁴ Thus, where a police officer has "reasonable suspicion that a driver is operating a vehicle while intoxicated," ¹⁵ the officer may conduct an investigatory stop.¹⁶

While we have held that a person who is driving while under the influence poses an "imminent public danger," warranting an investigatory stop,¹⁷ we have not considered whether a person who has recently been behind the wheel while intoxicated but is no longer driving continues to pose an imminent public danger. In a series of three cases,¹⁸ the court of appeals has addressed this specific issue. In Larson v. State, a police officer observed a car stopped in the middle of the road, and then watched as the driver of the car, Larson, drove on the wrong side of the road, tried to pick up pedestrians, and almost hit a group of pedestrians.¹⁹ The officer then witnessed Larson pick up two pedestrians, one of whom took over driving.²⁰ The officer stopped the car, immediately approached Larson, now a passenger, observed that he appeared intoxicated, and arrested him for DUI.²¹ The court of appeals concluded that the district court did not clearly err when it found that "it was likely that Larson would have resumed driving at some later point, and that [the officer] was not unreasonable in believing that the change of drivers did not eliminate the need to make an investigatory stop." ²²

In Romo v. Municipality of Anchorage, a police officer began following the defendant after observing a known prostitute in the cab of the truck that the defendant was driving.²³ The defendant, who was not driving erratically, pulled into a parking lot, exited the truck, and voluntarily approached the police officer.²⁴ When the police officer noticed that Romo had an "odor of alcoholic beverage about his ... person," he asked Romo to perform a field sobriety test.²⁵ The court of appeals concluded the test was justified by reasonable suspicion.²⁶ The court explained that "Ithe fact that Romo was driving just prior to his encounter with [the officer] demonstrated Romo's willingness to drive in his current [intoxicated] condition." ²⁷ The court of appeals went on to reason that because "Romo retained possession of his car and it remained immediately accessible for him to drive," ²⁸ "there was a sufficient risk of imminent public danger to warrant an investigatory stop." ²⁹

In Shearer v. Municipality of Anchorage, a police officer noticed a jeep being driven erratically on the Clenn Highway and followed the vehicle until its owner pulled the jeep into his driveway.³⁰ The officer contacted the driver, Shearer, as he was heading into his house, and, noticing that Shearer smelled of alcohol, asked him to perform field sobriety tests.³¹ As in Romo, the court of appeals pointed to Shearer's continuing possession of the vehicle as a factor increasing the likelihood that he would resume driving, but did not state that possession was, in all cases, a necessary condition for finding an imminent public danger:

[Llike the defendant in Romo, Shearer still had access to his car at the time of the encounter with [the police officer]. Further, Shearer had just demonstrated his willingness to drive while intoxicated. Thus, [the officer] could reasonably believe that there was a sufficient risk of imminent public danger to justify an investigatory stop.[³²]

In this case, although Hartman was no longer driving his car, the investigatory stop was still proper. Somerlot reported that the Honda "whip[ped]" into his yard and "crashed" into a ditch in front of his house. Somerlot then saw the juveniles exit the Honda and get into a "tan Ford Taurus[-ltype vehicle." There was no license plate on the Honda, but the vehicle identification number indicated that it belonged to John Hartman, whose teenage son Tuckwood knew. Tuckwood noted that the Honda smelled strongly of alcohol. While waiting for the tow truck to arrive, Tuekwood saw a tan Ford Taurus-like vehicle with juveniles in it drive by the abandoned Honda. Tuckwood therefore had a reasonable suspicion that someone had been driving the Honda while under the influence and that the intoxicated driver of the Honda was likely in the Ford Taurus when Tuckwood stopped it. Although Hartman was now a passenger in the Ford Taurus, this is not enough to show that he no longer posed an imminent public danger. Passenger status did not automatically establish a non-driving intention on Hartman's part.³³ Nor was Hartman's non-ownership of the Ford Taurus determinative absent evidence that the owner of the vehicle was unwilling to give him a chance to drive. In view of Hartman's continuing access to the Taurus, Tuckwood's belief that Hartman posed an imminent public danger was reasonable. Therefore, under these circumstances, the investigatory stop was legal.

C. Denial of a Continuance and Failure To Provide the Recording

Hartman maintains that the superior court erred by denying him a continuance to obtain additional evidence. Because this claim is closely related to his argument about the recording-that the State violated his right to due process by failing to furnish the central piece of evidence in the case-the two issues will be treated together.

A driver has "a constitutional right to a meaningful hearing before the state can suspend his [or her] license." ³⁴ In defining a meaningful hearing, "we are guided by 'considerations of fundamental fairness, ³⁵ which require that "the same procedural safeguards apply in civil driver's license revocation proceedings for driving while intoxicated as apply in eriminal prosecutions for that offense.³⁶ One such safeguard is the requirement that the State "preserve and make available to a criminal defendant material evidence gathered in a criminal investigation which may prove important in the preparation of the accused's defense.³⁷ 5 A meaningful license revocation hearing, like a meaningful trial, should therefore include "the presence of the arresting officer, the production of the report of the arresting officer and any tape recordings, videotapes, or transcripts concerning events surrounding the arrest." ³⁸

The State asserts that it is generally not required to furnish such evidence in the absence of a request,³⁹ and points out that Hartman did not explicitly request a copy of the tape. But Hartman, a pro se litigant, had requested a continuance on the ground that he had "so far been unable to gather all the evidence that [he] need[ed]," and the court heard testimony that he had previously (but unsuccessfully) attempted to obtain a copy of the recording. We have stated that a "trial judge should inform a pro se Htigant of the proper procedure for the action he or she is obviously attempting to accomplish.⁴⁰ Here, Hartman was "obviously attempting" ⁴¹ to obtain potentially exculpatory evidence, and the central piece of evidence in this case was the recording.⁴² His failure to request a copy at the close of the hearing appears to have been the product of a belief that the tape did not exist.⁴³ In this situation, the hearing officer should have informed Hart man that he could request a copy of the tape and, if the State failed to provide the requested evidence, that she could impose an appropriate sanction.⁴⁴ Her failure to inform Hartman of the procedure by which he could procure the tape that he had previously sought, and her issuance of a decision that was based largely on a recording that neither she nor the accused had heard, violated Hartman's right to due process. We therefore remand for a new hearing.

D. Notice of DMV’s Procedures

Finally, Hartman claims that the hearing officer denied him "advance notice of [DMV's] method of proceeding" by: (1) failing to inform him before the day of the hearing that his continuance would be denied; (2) not giving him notice that she would be considering testimony about the recording; and (8) failing to state when she would issue a judgment. But the notice of administrative hearing stated that, in the absence of an answer regarding a motion for postponement, "the motion may be considered denied." The second and third elements of Hartman's notice claim are moot. Because we hold that the hearing officer's conduct regarding the recording was unconstitutional, we need not address the question whether Hartman received notice that testimony regarding the recording would be considered. Similarly, because we are remanding for a new hearing, we need not determine whether the hearing officer provided sufficient notice of the date of her decision.

IV. CONCLUSION

For the reasons set forth above, we REVERSE the judgment of the superior court and REMAND to DMV for further proceedings consistent with this opinion.

EASTAUGH, Justice, dissenting.

1 . It is unclear whether Morris meant that Hartman was intoxicated at the time Tuckwood asked or when he was driving the Honda.

2 . AS 04.16.051(a) forbids the delivery of alcoholic beverages to those under twenty-one, but AS 04.16.051(b)(1) makes an exception for alcohol given "by a parent to the parent's child."

3 . 43 P.3d 157 (Alaska 2002). In Snyder, the driver claimed that he had not become intoxicated until after he crashed his vehicle. Id. at 158.

4 . Although the hearing officer did not inform Hartman of her decision until the day of the hearing, the notice of administrative hearing states that, in the absence of an answer regarding a motion for postponement, "the motion may be considered denied."

5 . Hartman described it as a "field car," as opposed to a "highway car," and denied that he had driven it on the road.

6 . Mercer testified that Hartman appeared to be sober before dinner, but that he had consumed beer during dinner.

7 . 123 P.3d 958, 961 (Alaska 2005) (citations and quotation marks omitted).

8 . The State points out that Hartman did not raise this issue before the hearing officer. Cf. Snyder, 43 P.3d at 161 n. 9 (holding that a driver "waived his Miranda claim by failing to argue it at the initial ... hearing"). But, in its brief and arguments before the superior court, the State did not raise the waiver issue. The State, therefore, has waived the right to argue that Hartman waived the search issue.

9 . Nevers, 123 P.3d at 962. This rule is applicable in both state and federal courts. See Ellison v. State, 383 P.2d 716, 718 (Alaska 1963) (citing Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) for the proposition that the exclusionary rule "operates as a constitutional mandate upon the state courts").

10 . Nevers, 123 P.3d at 964.

11 . Id. (quoting State v. Sears, 553 P.2d 907, 914 (Alaska 1976)).

12 . Nevers, 123 P.3d at 963 n. 21.

13 . Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).

14 . Saltz v. State, Dep't of Admin., Div. of Motor Vehicles, 126 P.3d 133, 136 (Alaska 2005) (citing State v. Moran, 667 P.2d 734, 735-36 (Alaska App.1983)).

15 . Saltz, 126 P.3d at 136.

16 . Id.; see also State v. G.B., 769 P.2d 452, 456 (Alaska App.1989) (noting that police officers may conduct investigatory stops in cases where "a prompt investigation is required ... as a matter of practical necessity") (citation omitted).

17 . Ebona v. State, 577 P.2d 698, 701 (Alaska 1978).

18 . Shearer v. Municipality of Anchorage, 4 P.3d 336, 338-40 (Alaska App.2000); Romo v. Municipality of Anchorage, 697 P.2d 1065, 1069-70 (Alaska App.1985); Larson v. State, 669 P.2d 1334, 1337 (Alaska App.1983).

19 . 669 P.2d at 1335.

20 . Id.

21 . Id. at 1335-36.

22 . Id. at 1337.

23 . 697 P.2d at 1067.

²⁴

²⁵

26 . Id. at 1068-69.

27 . Id. at 1069.

²⁸

29 . Id. at 1069-70.

30 . 4 P.3d at 337-38.

31 . Id. at 338.

32 . Id. at 340 (citation omitted).

33 . See Larson, 669 P.2d at 1335-37 (affirming the validity of an investigatory stop after a third party had taken the defendant's place at the wheel and the defendant had become a passenger).

34 . Champion v. Dep't of Pub. Safety, 721 P.2d 131, 133 (Alaska 1986); see also Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1135-36 (Alaska 2001) (noting that "a driver's license is an important property interest," and that our cases "underscore the importance of the right to drive").

35 . Thorne v. Dep't of Pub. Safety, State of Alaska, 774 P.2d 1326, 1329 (Alaska 1989) (quoting Whisenhunt v. Dep't of Pub. Safety, 746 P.2d 1298, 1300 (Alaska 1987)).

36 . Barcott v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 741 P.2d 226, 228 (Alaska 1987) (citing Champion, 721 P.2d at 133); see also Whitesides, 20 P.3d at 1135-36, 1138-39 (noting that DMV must permit the accused to test the reliability of evidence and may not consider evidence obtained in violation of the right to counsel, and holding that an in-person hearing must be provided on request where the credibility of a party is at issue).

37 . Thorne, 774 P.2d at 1330 (holding that the State's failure to preserve a videotape of field sobriety tests taken an hour after a DWI arrest violated the driver's right to due process in a license revocation hearing); see also Snyder v. State (Snyder I), 930 P.2d 1274, 1282 (Alaska 1996) (noting, in the context of a criminal prosecution for driving while intoxicated, that "[i]t is a fundamental tenet of due process of law that a person accused of a crime has a right to attempt to obtain exculpatory evidence. And it is well established that law enforcement has a duty to preserve and disclose material evidence, the dereliction of which can deprive the accused of due process."). This is particularly true where the evidence is of a type that the State can easily preserve. See Thorne, 774 P.2d at 1330 (explaining, in the context of a videotape, that "considerations of fundamental fairness dictate that where the burden of preservation is so slight, evidence being potentially relevant to an issue of central importance at the revocation proceeding should be preserved").

38 . Graham v. State, 633 P.2d 211, 216 n. 12 (Alaska 1981).

39 . But see Snyder I, 930 P.2d at 1278 (holding that the State was required to help a suspect obtain evidence in the "unique evidentiary circumstance" of a request for an independent blood test in connection with a DWI arrest).

40 . - Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987); see also Genaro v. Municipality of Anchorage, 76 P.3d 844, 846-47 (Alaska 2003) (holding that the superior court erred by failing to inform a pro se litigant who was "obviously attempting" to use a Rule 36(b) motion to preclude summary judgment of the procedure for doing so); Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998) (holding that the superior court erred by failing to inform a pro se litigant of the specific defects in his notice of appeal and give him an opportunity to remedy those defects).

41 . Breck, 745 P.2d at 75. This is distinguishable from a situation where the court has reason to believe that discovery issues have been resolved. Cf. Rollins v. State, Dep't of Rev., Alcoholic Beverage Control Bd., 991 P.2d 202, 212 (Alaska 1999) (holding that the due process rights of an applicant for a beverage dispensary license were not violated by the hearing officer's failure to inquire into alleged discovery violations by the State because "correspondence between [the applicant] and the Board, copied to the hearing officer, reasonably indicated that the discovery issues were resolved").

42 . In many DUI cases, the most important evidence is the alcohol test result. See, e.g., Barcoit, 741 P.2d at 228-30 (discussing whether due process requires consideration of the "inherent inaccuracy" of a breath alcohol test when the result is within the margin of error). But Hartman did not claim during the hearing that he was not intoxicated. Rather, his defense was that he did not start drinking until after he stopped driving. The hearing officer's negative credibility assessment was largely based on Tuckwood's claims that Hartman had denied having consumed any alcohol at the time of arrest. By proving or disproving this, the tape could have had a decisive effect on the result.

43 . According to the testimony of Hartman's mother, he instructed his public defender to obtain a copy in the criminal case, but no copy was provided. Even after Tuckwood told the hearing officer about the contents of the tape, Hartman's mother testified that "there is no tape," and that the reason why Hartman was unable to obtain it from his public defender was because it did not exist.

44 . Sanctions would be based on "[the state's good or bad faith in failing to preserve the [Itape," as well as "the degree of culpability on the part of the state, the importance of the evidence lost, the prejudice suffered by the accused, and the evidence of guilt adduced at the trial or hearing." Thore, 774 P.2d at 1331. In Thorne, we determined that the appropriate sanction was a presumption that the contents of the videotape. at issue would have favored the accused. I4.