      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

JOE D. GARIBAY,                                )
                                               )        Supreme Court No. S-15017
                      Appellant,               )
                                               )        Superior Court No. 4FA-11-01772 CI
              v.                               )
                                               )        OPINION
STATE OF ALASKA,                               )
DEPARTMENT OF                                  )        No. 6970 - November 28, 2014
ADMINISTRATION, DIVISION                       )
OF MOTOR VEHICLES,                             )
                                               )
                      Appellee.                )
                                               )

              Appeal from the Superior Court of the State of Alaska,
              Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.

              Appearances: Robert A. Sparks, Law Office of Robert A.
              Sparks, and Robert John, Fairbanks, for Appellant. Erling T.
              Johansen, Assistant Attorney General, Anchorage, and
              Michael C. Geraghty, Attorney General, Juneau, for
              Appellee.

              Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
              Bolger, Justices.

              MAASSEN, Justice.

I.    INTRODUCTION
              After a woman reported having an altercation with Joe Garibay in a store,
the police stopped him, then arrested him for driving under the influence of alcohol. The
Department of Motor Vehicles revoked Garibay’s driver’s license for 90 days, and the
superior court affirmed the revocation. Garibay appeals, arguing that the police stop
constituted an unconstitutional search and seizure requiring that evidence of his drinking
be excluded from the license revocation proceedings. We affirm on the basis of our prior
cases, which hold that the exclusionary rule applies in license revocation proceedings
only in exceptional circumstances not present here.
II.    FACTS AND PROCEEDINGS
              Joe Garibay was at the Sam’s Club in Fairbanks when he collided with a
woman’s shopping cart, waking her baby.1 The woman demanded an apology, but
Garibay swore at her instead. Assuming he was drunk because of the beer in his cart and
his threatening manner, the woman called the police, then followed Garibay out to the
parking lot to get his license plate number. When a police officer arrived a few minutes
later, the woman told him that Garibay was “maybe . . . a drunk,” that he had threatened
her in front of her children, and that she wanted him charged with assault. Informed that
an assault charge was unlikely, the woman asked that the police at least “find that guy
to make sure he’s not drunk.” The officer assured her that they would try to find Garibay
and “make sure he’s not, you know, drunk driving, something like that.”
              The police located Garibay’s empty vehicle shortly afterward in a nearby
parking lot. Officer Fett parked behind it and activated his emergency lights. When
Garibay returned, he attempted to back out of the parking space despite the police car
behind him; he apparently did not notice he was blocked in until Officer Fett knocked
on his window. Another officer arrived, and both officers spoke with Garibay. Although


       1
              The facts of this altercation are the subject of police reports but were not
adjudicated; they are recited here only to place the actions of the police in the context of
what they had been told.


                                            -2-                                       6970
he told them he had not consumed any alcohol that day, the officers observed that he
swayed, had bloodshot and watery eyes, and smelled strongly of alcohol. He failed three
field sobriety tests and blew .128 on the preliminary breath test. The officers arrested
him for driving under the influence of alcohol and for possessing firearms while in an
impaired state.2 They then tested him again using the Datamaster breath testing machine,
which showed a breath alcohol content of .111. As a result, the Department of Motor
Vehicles (DMV) revoked Garibay’s license for 90 days.
              Garibay appealed the license revocation, and the DMV held an
administrative hearing. Garibay was represented by counsel, who cross-examined both
police officers involved in the arrest. It was Garibay’s position that the officers’ conduct
in approaching his vehicle constituted an illegal investigative stop. But the hearing
officer, citing prior decisions of this court,3 instructed Garibay’s attorney not to inquire
about the stop’s legality. The hearing officer concluded that the legality of the stop was
not relevant in a license revocation proceeding, that there was probable cause to believe
Garibay was operating a motor vehicle while under the influence of alcohol, and that the
Datamaster breath test demonstrated that Garibay’s breath alcohol limit was over the
legal limit — thus satisfying the requirements of the revocation statute,



       2
              See AS 11.61.210(a)(1) (defining fourth-degree weapons misconduct to
include a person’s possession of a firearm “when the person’s physical or mental
condition is impaired as a result of the introduction of an intoxicating liquor”).
       3
              See Alvarez v. State, Dep’t of Admin., Div. of Motor Vehicles, 249 P.3d
286, 296 (Alaska 2011) (holding, in part, that whether the police have reasonable
suspicion to stop a driver is irrelevant in a license suspension proceeding because the
exclusionary rule does not apply); Nevers v. State, Dep’t of Admin., Div. of Motor
Vehicles, 123 P.3d 958, 966 (Alaska 2005) (holding that the exclusionary rule does not
apply to license revocation hearings as a general rule).


                                            -3-                                       6970

AS 28.15.166(g).4 The hearing officer therefore affirmed the 90-day license revocation.
              Garibay appealed the agency decision to the superior court, arguing again
that the investigative stop was illegal. Like the hearing officer, the superior court held
that the legality of the stop was irrelevant in license revocation proceedings and therefore
affirmed the revocation of Garibay’s license.
              Garibay appeals, arguing again that the investigative stop was illegal and
that this divested the DMV of jurisdiction to revoke his license. He also argues that the
exclusionary rule should apply in civil license revocation proceedings, and alternatively
that the exclusionary rule should at least apply to his case because the police conduct was
shocking.
III.   STANDARDS OF REVIEW
              We set out the standards of review relevant here in our earlier decisions
involving the application of the exclusionary rule in license revocation proceedings:
              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 superior court acts as
              an intermediate court of appeals, we independently review
              the hearing officer’s decision. For legal questions not




       4
              As relevant here, the statute states that administrative review of a revocation
decision “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 . . . while
under the influence of an alcoholic beverage” and had chemical test results that violated
the statutory limits.


                                            -4-                                        6970

              involving agency 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.[5]
IV.	   DISCUSSION
       A.	    The Exclusionary Rule Generally Does Not Apply In License
              Revocation Proceedings.
              Under the exclusionary rule, “evidence obtained from an unconstitutional
search or seizure is inadmissible and must be excluded.”6 In Nevers v. State we
considered for the first time whether the exclusionary rule should apply to search and
seizure violations in license revocation proceedings.7	 Citing State v. Sears,8 we balanced
the costs of applying the rule against its benefits.9 On the cost side, we noted that
“application of the exclusionary rule to license revocation hearings will in some cases
frustrate the important state interest in keeping drunk drivers off the road by excluding
pertinent evidence”; “will significantly increase the administrative burden of what is
intended to be an informal process,” particularly given that “hearing officers in Alaska
need not even be lawyers”; and will likely “result in longer and more complicated




       5
            Alvarez, 249 P.3d at 290-91 (quoting Nevers, 123 P.3d at 961) (internal
quotation marks omitted).
       6
              Nevers, 123 P.3d at 962 (citing Ellison v. State, 593 P.2d 640, 718 (Alaska
1979)).
       7
              Id. at 962 n.16.
       8
              553 P.2d 907, 912-14 (Alaska 1976).
       9
              Nevers, 123 P.3d at 963-64.


                                            -5-	                                     6970

hearings in many cases.”10 On the benefit side, we considered the likelihood that
applying the rule in license revocation proceedings would “deter unlawful police
conduct,” concluding that the effect would be insignificant “because the police are
already sufficiently deterred from such unlawful conduct by the applicability of the
exclusionary rule to all criminal cases that may result from their investigations.”11
Finding that the costs significantly outweighed the potential benefits, we held that the
exclusionary rule was inapplicable to license revocation proceedings — with a few
exceptions, discussed below.12
              In a subsequent case, Alvarez v. State, Department of Administration,
Division of Motor Vehicles, we affirmed a hearing officer’s decision to preclude cross-
examination of the arresting officer about “details leading up to the initial stop.”13 We
agreed with the hearing officer “that only [the arresting officer’s] observations after
pulling Alvarez over were relevant to the statutory inquiry whether [the arresting officer]
had probable cause to arrest Alvarez for driving while intoxicated.”14 We explained that
“whether or not [the arresting officer] had reasonable suspicion to stop Alvarez is
irrelevant in a license suspension proceeding.”15
              Applying Nevers and Alvarez in this case, the hearing officer was correct
to rule that the exclusionary rule did not apply to Garibay’s license revocation hearing.

       10
              Id. at 963.
       11
              Id. at 964.
       12
              Id.
       13
              249 P.3d 286, 295 (Alaska 2011).
       14
              Id. at 296 (emphasis in original).
       15
              Id.


                                           -6-                                       6970

       B.     The Exceptions Noted In Nevers Do Not Apply To This Case.
              In Nevers we did note certain exceptional circumstances that would justify
application of the exclusionary rule in license revocation proceedings. We held that the
rule would apply if there is “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.”16 In a footnote we set out another exception relevant
here: “where a Fourth Amendment violation stems from a lack of probable cause for a
DWI arrest, . . . 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.”17
Garibay argues that these exceptions allow him to challenge the legality of the
investigative stop at the license revocation hearing, but we disagree.
              First, we reject Garibay’s argument that “the police action in this case was
shocking misconduct, because of the completely speculative basis for the police officer’s
investigative stop.” The investigative stop was based on the report of the woman at
Sam’s Club, who suspected from Garibay’s actions and demeanor that he was drunk.
Garibay did not present any facts to indicate that the officers who stopped him acted
deliberately to violate his constitutional rights18 or that they engaged in any other
shocking behavior. We see no basis for applying the exception to this case.
              Also inapplicable is the exception that requires exclusion of evidence where
the DUI arrest is not based on probable cause. Garibay frames the relevant time as the


       16
             Nevers, 123 P.3d at 964 (quoting State v. Sears, 553 P.2d 907, 914 (Alaska
1976)) (internal quotation marks omitted).
       17
              Id. at 964 n.21.
       18
            See Fraiman v. State, Dep’t of Admin., Div. of Motor Vehicles, 49 P.3d 241,
245 (Alaska 2002).


                                             -7-                                        6970

moment of the investigative stop rather than the arrest. But his argument is precluded
by our decision in Alvarez, where we affirmed the hearing officer’s determination that
“only [the arresting officer’s] observations after pulling Alvarez over were relevant to
the statutory inquiry whether [the arresting officer] had probable cause to arrest Alvarez
for driving while intoxicated.”19 Here, after stopping Garibay in his attempt to back out
of his parking space, the officers observed that he had bloodshot, watery eyes, smelled
strongly of alcohol, had balance issues, failed several field sobriety tests, and had a
preliminary breath test result significantly over the legal limit. These observations
“would warrant a prudent person in believing”20 that Garibay had committed the offense
of operating a vehicle while under the influence of alcohol.21 Because the officers had
probable cause to arrest Garibay at the relevant moment — the moment of his arrest for
DUI — the second Nevers exception does not apply here either.22
       C.     The DMV Had Jurisdiction To Revoke Garibay’s License.
              Under the implied consent statute, AS 28.35.031(a), “[a] person who
operates or drives a motor vehicle in this state . . . shall be considered to have given
consent” to a test to determine the person’s blood or breath alcohol concentration, if that
person is “lawfully arrested” for driving under the influence of alcohol. Garibay argues
that this “lawful arrest” component of the implied consent statute must be read into


       19
              Alvarez, 249 P.3d at 296 (emphasis in original).
       20
            State v. Blank, 90 P.3d 156, 162 n.38 (Alaska 2004) (citing Schmid v. State,
615 P.2d 565, 574 (Alaska 1980)).
       21
              AS 28.35.030(a).
       22
             “Probable cause to arrest exists if the facts and circumstances known to the
officer would warrant a prudent person in believing that the defendant had committed
an offense.” Blank, 90 P.3d at 162 n.38 (citing Schmid, 615 P.2d at 574).


                                            -8-                                      6970

AS 28.15.166(g), the statute providing for administrative review of a license revocation,
such that the DMV lacks the authority to revoke a license absent a “lawful arrest.” We
reject this argument too as inconsistent with our prior cases.
             In Javed v. Department of Public Safety, Division of Motor Vehicles, we
explained that although AS 28.15.166(g)(1) cites the implied consent statute, its focus
“is clearly on the result of the test or the fact of refusal to take the test.”23 Our
explanation continued:
             Reading subsection .166(g)(1)-(3) to encompass an inquiry
             into the underlying facts that justify administration of the test
             would render the first part of subsection .166(g), regarding
             the issue of whether the law enforcement officer had
             reasonable grounds to believe that the person was operating
             a motor vehicle, almost meaningless. The statute offers very
             precise limiting language for the issues that are to be
             considered. There is no reason to believe that the reference
             to the implied consent statutes is anything more than a
             descriptive tool used to identify the “chemical test” named in
             each instance.[24]
The statute thus does not require an inquiry into the lawfulness of the investigative stop
at the administrative review hearing.
             For his contrary reading of the statute, Garibay relies on the dissent in
Hartman v. State, Department of Administration, Division of Motor Vehicles.25 The
dissent concluded that the investigative stop in Hartman was unlawful, and that therefore
“[t]he ensuing arrest was also unlawful because [the trooper] established probable cause



      23
             921 P.2d 620, 625 (Alaska 1996).
      24
             Id.
      25
             152 P.3d 1118, 1126-30 (Alaska 2007) (Eastaugh, J., dissenting).


                                           -9-                                      6970

to arrest Hartman with information gathered during the unlawful stop.”26
             But the dissent in Hartman is not the law in Alaska, and it conflicts with
Nevers, which is the law in Alaska. The police unlawfully entered Nevers’s home,
questioned him, and gave him a preliminary breath test that showed he was intoxicated.27
They then arrested him. Nevers tried to exclude the results of the breath test because of
the police’s unlawful entry.28 We held, however, that the results could not be suppressed
because the exclusionary rule does not apply to license revocation proceedings.29
Nevers’s arrest was based on probable cause; the problem was that the probable cause
was the result of an unlawful entry into his home. In a criminal proceeding, under the
exclusionary rule, the police’s illegal conduct would invalidate the breath test and the
subsequent arrest.30 But in a license revocation proceeding, because the exclusionary
rule does not apply, illegal police conduct prior to arrest does not invalidate the arrest
unless it “shocks the conscience.”31 As the dissent in Hartman recognized, it is the
exclusionary rule that acts to invalidate an arrest by taking out of the equation some
evidence on which probable cause to arrest was based;32 without the exclusionary rule,


      26
             Id.
      27
            Nevers v. State, Dep’t of Admin., Div. of Motor Vehicles, 123 P.3d 958,
960-61 (Alaska 2005).
      28
             Id.

      29
             Id. at 963.

      30

             See id. at 962.
      31
             Id. at 964.
      32
             Hartman v. State, Dep’t of Admin., Div. of Motor Vehicles, 152 P.3d 1118,
                                                                         (continued...)


                                          -10-                                      6970

the evidence stays in and the arrest stands.
               Because the exclusionary rule does not apply to Garibay’s case, his
argument that he was unlawfully arrested fails. The DMV had the authority to revoke
his license.
V.     CONCLUSION
               We AFFIRM the hearing officer’s decision upholding the revocation of
Garibay’s license.




       32
               (...continued)
1130 (Alaska 2007) (Eastaugh, J., dissenting) (“[A]n unlawful stop may ‘invalidate’ an
ensuing arrest . . . through the exclusion of evidence garnered from the stop.”
(alterations in original)).


                                          -11-                                   6970
