Evans v. State, Taxation and Revenue Dept., Motor Vehicle Div., 16645

• Decision Date: 21 June 1996
• Docket Number: No. 16645,16645
• Citation: 122 N.M. 216,922 P.2d 1212,1996 NMCA 80
• Parties: Gilbert Lynn EVANS, Plaintiff-Appellee, v. STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1212

922 P.2d 1212

122 N.M. 216

Gilbert Lynn EVANS, Plaintiff-Appellee, v.STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Defendant-Appellant.

No. 16645.

Court of Appeals of New Mexico.

June 21, 1996.

Certiorari Denied Aug. 15, 1996.

Tom Udall, Attorney General, Frank D. Katz, Special Assistant Attorney General, Taxation & Revenue Dep't, Santa Fe, for Appellant.

Andrea Lenway, Mayhill, for Appellee.

Ray Twohig, Albuquerque, for amicus curiae, N.M. Criminal Defense Lawyers Ass'n.

OPINION

BOSSON, Judge.

1.We are presented with the following question: Under the Implied Consent Act may the Department of Motor Vehicles("DMV" or "the Department") conduct license revocation hearings telephonically for DWI offenses without the physical presence of the hearing officer?We hold that the statute, NMSA 1978, Section 66-8-112(B)(Repl.Pamp.1994), does not authorize telephonic revocation hearings, and therefore under current law these hearings are required to be held in person.

FACTUAL BACKGROUND

2.Defendant was arrested for driving under the influence of alcohol in Otero County.He submitted to a breath test under the Implied Consent Act.SeeNMSA 1978, §§ 66-8-105 to -112 (Repl.Pamp.1994).The results indicated that he had a blood-alcohol level of .14, well over the .08 limit provided by state law.See§ 66-8-110(C);NMSA 1978, § 66-8-102(C)(Repl.Pamp.1994).Defendant was then served with a notice of license revocation pursuant to Section 66-8-111.1, and upon Defendant's request, a license revocation hearing was duly scheduled.See§ 66-8-112.The hearing was conducted telephonically by a DMV hearing officer located in Santa Fe.Defendant, his attorney, and the arresting officer were all present in the DMV field office in Otero County.A speaker phone and a facsimile machine were made available for use by the parties.Defendant objected to the telephonic hearing, arguing that the applicable statute, Section 66-8-112(B), requires the entire hearing to take place in the county where the DWI offense occurred.The hearing officer overruled the objection.Following the hearing, Defendant's driving privileges were revoked for ninety days.See§ 66-8-111(C)(1).Defendant appealed to the district court for Otero County which reversed the hearing officer's decision, holding that the telephonic hearing violated Section 66-8-112(B).The district court also reinstated Defendant's driving privileges.The Department appeals.

DISCUSSION

3.Section 66-8-112(B) provides an administrative hearing for license revocation and states, in part, that "[t]he hearing shall be held in the county in which the offense for which the person was arrested took place."The Department argues that this is a mere venue statute for the convenience of the parties which the Department can satisfy by parties giving testimony locally over the telephone to a hearing officer located in Santa Fe.Defendant, on the other hand, maintains that when the legislature prescribes a "hearing" to be held "in the county in which the offense ... took place,"the legislature intends a hearing with the parties and the hearing officer in one place: "in the county" of the offense.Defendant has not raised a due process challenge to the Department's telephonic hearing.SeeState ex rel. Human Servs. Dep't v. Gomez, 99 N.M. 261, 268, 657 P.2d 117, 124(1982)(Supreme Court adopting Wood, J., dissent).We assume, but do not decide, that the Department can conduct license revocation hearings over the telephone without violating constitutional requirements.The question before us here, however, is whether the legislature has authorized the Department to do so.

4.We observe that for over twenty-five years this statute, Section 66-8-112(B), and its antecedents have consistently required that driver license revocation hearings "shall be held in the county" of the offense.1978 N.M.Laws, ch. 35, § 520(B);1971 N.M.Laws, ch. 68, § 6(B).Previously, to revoke a driver's license, the Department had to file a civil action in magistrate court in the county where the defendant resided.See1969 N.M.Laws, ch 30, § 9(A).The Department acknowledges that until recently it uniformly conducted all revocation hearings in person and has conducted them telephonically for only the past three to four years.¹In fact, most revocation hearings are still held in person; the Department uses telephonic hearings only for those less populated counties where, it argues, it would be a fiscal burden to do otherwise.

5.Without deciding whether other New Mexico agencies are authorized to conduct telephonic hearings, we find it instructive to review statutes governing hearings by other agencies.We are advised of only two other New Mexico agencies that conduct hearings telephonically: public assistance termination proceedings and unemployment compensation eligibility hearings.SeeNMSA 1978, § 27-3-3(Repl.Pamp.1995)(public assistance fair hearings);NMSA 1978, § 51-1-8(D)(Cum.Supp.1995)(unemployment compensation hearings).See generallyJerome R. Corsi & Thomas L. Hurley, Pilot Study Report on the Use of the Telephone in Administrative Fair Hearings, 31 Admin.L.Rev. 485(1979)(describing implementation of telephonic procedures);Jerome R. Corsi et al., Major Findings of the New Mexico Experiment of Teleconferenced Administrative Fair Hearings, 38 U.Miami L.Rev. 647(1984)(discussing positive outcome of field test).But see Neil Fox, Telephonic Hearings in Welfare Appeals: How Much Process is Due?, 1984 U.Ill.L.Rev. 445, 472-75(discussing problems found in study of telephonic hearings).

6.Although neither statute specifically authorizes telephonic hearings, both statutes delegate hearing procedure to administrative regulation which indicates a specific grant of administrative autonomy not found in the Implied Consent Act.Significantly, neither statute requires a hearing to be held in a particular locale as with DMV revocation proceedings.In contrast, other administrative hearing statutes, like the DMV license revocation statute, do require that a "hearing shall be held in the county," either of residence or where a particular act took place.SeeNMSA 1978, § 52-5-6(A)(Repl.Pamp.1991)(workers' compensation)("Hearings shall be held in the county in which the injury ... occur[s].");NMSA 1978, § 60-6C-2(Repl.Pamp.1994)(liquor license revocation proceeding)("[H]earings ... shall be held in the county in which the licensed premises ... are located.");NMSA 1978, § 61-1-6(Repl.Pamp.1993)(Uniform Licensing Act)("Board hearings ... shall be conducted in the county in which [the licensee resides], or at the election of the board [where]the act or acts complained of occurred.");NMSA 1978, § 40-4B-6(B)(Repl.Pamp.1994)(child support hearings)("Hearings shall be held in the judicial district in which the claim [arises] or ... the part[y] resides.").

7.These statutes share certain elements in common with the statute providing for DMV license revocation proceedings.First, of course, there is the similarity of language requiring a hearing to be held in a certain place.Second, we note that in each instance the hearings can have serious consequences to the parties involved, whether it be receipt of workers' compensation or child support, revocation of a professional or commercial license, or loss of permission to drive a motor vehicle.Third, credibility is often an issue in these hearings, whether the credibility of the accused or of the accuser.

8.In DMV license revocation proceedings, the credibility of the police officer and the driver is not infrequently at issue.By statute, the hearing officer shall decide, in part: "whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor."Section 66-8-112(E)(1).Resolving whether the law enforcement officer had "reasonable grounds" to stop the motorist and then had "reasonable grounds" to test the motorist for impairment can be intensely factual determinations in which credibility may become the determining factor.See, e.g., Apodaca v. State, Taxation & Revenue Dep't, 118 N.M. 624, 626, 884 P.2d 515, 517(Ct.App.)(arresting officer's safety concerns constituted reasonable grounds for stop), cert. denied, 118 N.M. 585, 883 P.2d 1282(1994).Additional factual issues may easily arise, including whether the driver declined to submit to a breath or blood test, whether the officer advised the motorist of the consequences of refusal, whether an initially recalcitrant driver recanted, or whether his change of mind was timely.See generallyState v. Suazo, 117 N.M. 785, 793, 877 P.2d 1088, 1096(1994)(adopting rule for retracting refusal to take blood-alcohol test);Fugere v. State, Taxation & Revenue Dep't, 120 N.M. 29, 34, 897 P.2d 216, 221(Ct.App.)(determining whether driver's actions constituted a refusal to take a breath test is a factual question), cert. denied, 119 N.M. 771, 895 P.2d 671(1995).

9.Traditionally, our legal system has depended upon personal contact between the fact finder and the witness to allow the fact finder to observe the demeanor of the witness as a means of assessing credibility.A long line of New Mexico cases reserves the determination of witness credibility to the fact finder, in this case the hearing officer.See, e.g., Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366(Ct.App.)("An appellate court does not observe the demeanor of live witnesses, cannot see a shift of the eyes ... or take notice of other signs that may mean the difference between truth and falsehood to the fact finder."), cert. denied, 109 N.M. 33, 781 P.2d 305(1988);Newman v. Basin Motor Co., 98 N.M. 39, 43, 644 P.2d 553, 557(Ct.App.1982)(citing "the venerable rule" that the credibility and weight of the testimony rests solely with the trial...