Thorne v. Department of Public Safety, State of Alaska
| Decision Date | 26 May 1989 |
| Docket Number | No. S-2566,S-2566 |
| Citation | 774 P.2d 1326 |
| Parties | Mark J. THORNE, Appellant, v. DEPARTMENT OF PUBLIC SAFETY, STATE OF ALASKA, Appellee. |
| Court | Alaska Supreme Court |
Peter F. Mysing, Kenai, for appellant.
Robin A. Taylor and Teresa E. Williams, Asst. Attys. Gen., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
A Soldotna police officer arrested Mark Thorne for driving while intoxicated. Thorne performed field sobriety tests at the scene of the accident just prior to the arrest and again at the Wildwood Pretrial Facility approximately an hour later. The police videotaped the tests given at the Pretrial Facility but destroyed that videotape prior to the civil license revocation hearing. This appeal addresses whether the failure to preserve the videotape of the field sobriety tests performed at the Pretrial Facility violated Thorne's constitutional rights to due process and to confront and cross-examine witnesses.
On March 16, 1987, Mark Thorne negligently caused his automobile to collide with one driven by Ben Metz. Thorne admitted that he was at fault. Metz called the Soldotna police, and officer Donald Fritz responded, arriving at the scene within 10 minutes. Officer Fritz questioned Metz briefly and allowed him to depart. Fritz questioned Thorne in the patrol car and noted the odor of alcohol on Thorne's breath. Fritz requested Thorne to perform some field sobriety tests. Thorne consented. Fritz administered numerous tests, including the recital of the ABC's, counting backwards, the one-legged balance test, and the heel to toe walk. Fritz felt that Thorne performed unsatisfactorily on these tests. Fritz requested Thorne to take a breathalyzer test, which he did. The portable breath test machine showed a blood alcohol content of .10 percent. 1 Fritz testified that even if Thorne's test had produced a result below the legal limit, Fritz would not have released Thorne "[b]ecause of his performance on the other tests."
Fritz arrested Thorne and took him to the Wildwood Pretrial Facility. There, approximately one hour after the initial tests, Thorne performed the same field sobriety tests and the performance was videotaped. Fritz testified at the later hearing that he had not noted in his report that Thorne's performance at Wildwood was any different from his performance at the scene of the accident. This, Fritz conceded, indicated that Thorne's performance at Wildwood was generally "similar" to his performance in the field. Fritz administered a second breath test to Thorne, which showed a blood alcohol level of .131 percent. Fritz then seized Thorne's driver's license and issued Thorne a Notice and Order of Revocation.
This Notice stated that Thorne's license would be revoked as of March 23, 1987 unless he requested an administrative review of the revocation. Due to a June, 1986 conviction for driving while intoxicated, Thorne's license would have been suspended for one year. 2 Thorne requested an administrative review within seven days, and a hearing was set for June 1, 1987. In a letter accompanying the request for review, Thorne's attorney, Peter Mysing, referred to the need to check the "results of the percholorate tube" and "also the possible need to subpoena police officers involved in the case," but he did not request preservation of the videotape.
In a letter dated March 31, 1987, 3 Mysing requested the agency in charge of the administrative review to cause Officer Fritz and Ben Metz (the other driver) to be present at Thorne's hearing. The videotape was not mentioned. The agency subpoenaed both individuals, and they appeared at the hearing.
On May 12, 1987, Thorne entered a no contest plea to the criminal charge of negligent driving. The police, having received no request to preserve the videotape, erased and recycled the tape sometime between May 12 and June 1, 1987.
At the June 1, 1987 hearing, assuming that Fritz had brought the videotape with him, Mysing requested the hearing officer to view the videotape before rendering a decision. Officer Fritz informed the parties that the tape was no longer available. Mysing moved that the charges against Thorne be dismissed, but the hearing officer proceeded to rule against Thorne, finding that "the officer had reasonable grounds to believe [Thorne was] driving while intoxicated."
Thorne appealed to superior court on June 5, 1987. The superior court affirmed the agency's decision on December 11, 1987. Thorne appeals, arguing (1) that the state's failure to preserve the videotape violated his rights to due process and to confront and cross-examine witnesses, and (2) that he was denied a fair hearing because the hearing officer was biased against him and rendered a decision against the weight of the evidence.
The superior court reviewed the agency's determination for misinterpretation of law, arbitrary or capricious acts, or determinations unsupported by the record. AS 28.15.166(m). We review the agency's determination independently of the superior court since the superior court was acting as an intermediate court of appeal. Barcott v. Department of Pub. Safety, 741 P.2d 226, 228 (Alaska 1987).
A driver's license "constitutes an important property interest which is protected under the state due process clause." Graham v. State, 633 P.2d 211, 216 (Alaska 1981). 4 Under Alaska's statutory scheme, a licensed driver who produces a breathalyzer test result of .10 percent blood alcohol or who refuses to take the breathalyzer test when requested to automatically has his or her license suspended at the end of a seven day period unless the driver requests an administrative review. 5 Such administrative review consists of a hearing before a hearing officer 6 where the issues are limited to "whether the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while intoxicated" and whether the driver refused to take the breathalyzer test or, upon taking it, produced a result of .10 percent blood alcohol or higher. 7
In the context of this administrative license revocation hearing, the due process clause guarantees the driver a "meaningful hearing before the state can suspend his license." Champion v. Department of Pub. Safety, 721 P.2d 131, 133 (Alaska 1986); see also Graham, 633 P.2d at 216.
In defining a meaningful hearing, we are guided by "considerations of fundamental fairness." Whisenhunt v. Department of Pub. Safety, 746 P.2d 1298, 1300 (Alaska 1987).
We have stated that "the same procedural safeguards apply in civil driver's license revocation proceedings for driving while intoxicated as apply in criminal prosecutions for that offense." Barcott, 741 P.2d at 228. The licensee's procedural safeguards at a revocation proceeding do not include a jury trial or the requirement of proof of guilt beyond a reasonable doubt. However, considerations of fundamental fairness have led us to hold that these safeguards do include the right to consider the inherent margin of error in breathalyzer test results, Barcott, 741 P.2d at 230, to have a breath sample preserved by the state for the purpose of allowing the accused to test the reliability and credibility of the breath test, Champion, 721 P.2d at 133; Briggs v. Department of Pub. Safety, 732 P.2d 1078 (Alaska 1987), and to exclude from the civil revocation hearing the results of breathalyzer tests acquired in violation of the accused's statutory right to consult counsel. Whisenhunt, 746 P.2d at 1299-1300.
We conclude that Thorne's due process rights at the revocation hearing were violated by the state's failure to preserve the videotape. Two considerations lead to this result. First, if Thorne were charged with the crime of driving while intoxicated, he would be entitled to have the videotape made available to him at the criminal trial, so under Barcott he should have that right at the civil proceeding. Second, 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.
Addressing the first point, our cases clearly establish that the state must 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. 8 The state's good or bad faith is not necessarily dispositive of whether the state's failure to preserve the evidence constitutes a due process violation. Williams v. State, 629 P.2d 54, 64 n. 22 (Alaska 1981); Putnam v. State, 629 P.2d 35, 43 n. 17 (Alaska 1980); Lauderdale v. State, 548 P.2d 376, 381-82 & 382 n. 11 (Alaska 1976). 9 Where the evidence has been destroyed, the issue is whether it would have been favorable to the accused. If the court is unable to make this determination, the court must evaluate whether the evidence "might have led the jury to entertain a reasonable doubt about the defendant's guilt." Wyrick v. State, 590 P.2d 46, 46 n. 1 (Alaska 1979); Torres v. State, 519 P.2d 788, 795 (Alaska 1974). The videotape here was made in connection with the criminal investigation of Thorne. If the videotape had shown Thorne performing the sobriety tests flawlessly, it might have led the jury to entertain a reasonable doubt about his guilt of the crime of driving while intoxicated. Thorne would have been entitled to have the videotape preserved and made available to him. Barcott thus requires that it be preserved and made available to him at the revocation hearing, since the preservation of a videotape is a "procedural safeguard" akin to the protections recognized in Whisenhunt, Barcott, Briggs and Champion, as opposed to the substantive requirements of a jury trial and proof beyond a reasonable doubt.
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