Section 28.15.166. Administrative review of revocation.

   (a) A person who has received a notice under AS 28.15.165(a) may make a written request for administrative review of the department's action under AS 28.15.165(c) or for limited license privileges under AS 28.15.165(d). If the person's driver's license has not been previously surrendered to the department, it shall be surrendered to the department at the time the request for review is made.
   (b) A request for review of the department's action under AS 28.15.165 shall be made within seven days after receipt of the notice under AS 28.15.165 or the right to review is waived and the action of the department under AS 28.15.165(c) is final. If a written request for a review is made after expiration of the seven-day period, and if it is accompanied by the applicant's verified statement explaining the failure to make a timely request for a review, the department shall receive and consider the request. If the department finds that the person was unable to make a timely request because of lack of actual notice of the department's action or because of factors of physical incapacity such as hospitalization or incarceration, the department shall waive the period of limitation, reopen the matter, and grant the review request. An initial request for limited license privileges may be made at any time. Subsequent requests for limited license privileges may not be made unless the applicant demonstrates a significant change in circumstances.
   (c) Upon receipt of a request for review, if it appears that the person holds a valid driver's license and that the driver's license has been surrendered, the department shall issue a temporary driver's permit that is valid until the scheduled date for the review. A person who has requested a review under this section may request, and the department may grant for good cause, a delay in the date of the hearing.  If necessary, the department may issue additional temporary permits to stay the effective date of its action under AS 28.15.165(c) until the final order after the review is issued.
   (d) A person who has requested a hearing under this section and who fails to attend or appear at the hearing, for reasons other than lack of actual notice of the hearing or physical incapacity such as hospitalization or incarceration, waives the right to a hearing. The determination of the department that is based upon the enforcement officer's report becomes final.
   (e) The hearing under this section must be held by telephone unless the hearing officer finds that a telephonic hearing would substantially prejudice the rights of the person involved in the hearing or that an in-person hearing is necessary to decide the issues to be presented in the hearing. An in-person hearing must be held at the office of the department nearest to the residence of the person involved in the hearing unless the department and the person agree that the hearing is to be held elsewhere.
   (f) A review under this section shall be held before a hearing officer designated by the commissioner. The hearing officer has authority to
        (1) administer oaths and affirmations;
        (2) examine witnesses and take testimony;
        (3) receive relevant evidence;
        (4) issue subpoenas, take depositions, or cause depositions or interrogatories to be taken;
        (5) regulate the course and conduct of the hearing;
        (6) make a final ruling on the issue.
   (g) The hearing for review of action by the department under AS 28.15.165 shall be limited to the issues of whether the law enforcement officer had probable cause to believe that the person was operating a motor vehicle or commercial motor vehicle that was involved in an accident causing death or serious physical injury to another, or that the person was operating a motor vehicle, commercial motor vehicle, or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of AS 28.33.030 or AS 28.35.030 and whether
        (1) the person refused to submit to a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a) or (g) after being advised that refusal would result in disqualification or the suspension, revocation, or denial of the person's license, privilege to drive, or privilege to obtain a license, and that the refusal is a misdemeanor;
        (2) the chemical test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in AS 28.35.030(a)(2); or
        (3) the chemical test administered under AS 28.33.031(a) produced a result described in AS 28.33.030(a)(2).
   (h) The determination of the hearing officer may be based upon the sworn report of a law enforcement officer.  The law enforcement officer need not be present at the hearing unless either the person requesting the hearing or the hearing officer requests in writing before the hearing that the officer be present.  If in the course of the hearing it becomes apparent that the testimony of the law enforcement officer is necessary to enable the hearing officer to resolve disputed issues of fact, the hearing may be continued to allow the attendance of the law enforcement officer.
   (i) Testimony given by the person at the hearing is not admissible against the person in a criminal trial unless the person's testimony at the trial is inconsistent with that given at the hearing.
   (j) If the issues set out in (g) of this section are determined in the affirmative by a preponderance of the evidence, the hearing officer shall sustain the action of the department. If one or more of the issues is determined in the negative, the department's action shall be rescinded.
   (k) If the action of the department in revoking a nonresident's privilege to drive a motor vehicle is not administratively contested by the nonresident driver or if the departmental action is sustained by the hearing officer, the department shall give written notice of action taken to the motor vehicle administrator of the state of the person's residence and to any state in which that person has a driver's license.
   (l)   [Repealed, Sec. 34 ch 119 SLA 1990]. 
   (m) Within  30 days of the issuance of the final determination of the department, a person aggrieved by the determination may file an appeal in superior court for judicial review of the hearing officer's determination. The judicial review shall be on the record, without taking additional testimony. 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.
   (n) The filing of an appeal under (m) of this section or a petition for review does not automatically stay the department's order or revocation. The court may grant a stay of the order or revocation only upon a motion and hearing, and upon a finding that there is a reasonable probability that the petitioner will prevail on the merits, that the petitioner will suffer irreparable harm if the order is not stayed, and in a case where the petitioner operates a commercial motor vehicle that the public can be adequately protected by conditions imposed by the court.

Authorities

28.15.165;28.33.031

Notes

Recent Bills that will modify this

HB 162 DMV REVOCATION OF DRIVER'S LICENSE

Implemented As

2 AAC 93.010
2 AAC 93.020
2 AAC 93.030
2 AAC 93.990

References

2 AAC 93.010
2 AAC 93.020
AS 28.15.165 Administrative revocations and disqualifications resulting from chemical sobriety tests and refusals to submit to tests.
AS 28.33.031 Implied consent for operators of commercial motor vehicles.

History

(Sec. 3 ch 77 SLA 1983; am Sec. 6 - 10, 34 ch 119 SLA 1990; am Sec. 2 ch 158 SLA 1990; am Sec. 3 - 6 ch 3 SLA 1992; am Sec. 3 ch 55 SLA 1994; am Sec. 7 - 9 ch 6 FSSLA 1996; am Sec. 11 ch 60 SLA 2002)