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Snyder v. State3/15/2002
ing on remand, she announced the decision. Snyder's counsel thereafter did his best to question the decision, but Hearing Officer Kutchins soon made it known that she would not reconsider. On this record, we find no meaningful consent to the new hearing officer's participation and no waiver of Snyder's right to request live testimony.
We note that the absence of advance notice can be particularly damaging in an administrative revocation proceeding like Snyder's because the state was not represented by counsel at the initial hearing and the original hearing officer conducted the DMV's cross-examination. Hearing Officer Gifford thoroughly questioned Snyder and Scott on matters of particular concern to her assessment of credibility. Yet Hearing Officer Kutchins later based her own credibility ruling on different matters - Snyder's prior record and his failure to explain his post-accident drinking to Trooper Baergen. These matters had not been addressed in Hearing Officer Gifford's earlier questioning. Absent prior notice of Hearing Officer Kutchins's intent to alter the original credibility findings, then, Snyder had no reasonable opportunity to respond to the new hearing officer's concerns.
Considering the totality of these circumstances, we conclude that Hearing Officer Kutchins's impromptu revision of the original credibility findings was fundamentally unfair and deprived Snyder of his right to due process. The DMV's order revoking Snyder's license must therefore be vacated, and this case must be remanded for a new hearing.
Our decision to reverse and remand makes it unnecessary to address Snyder's alternative claims of error except to the extent that they question the state's ability to pursue the revocation proceedings on remand. Snyder raises three constitutional claims of this kind, contending that (a) the field sobriety tests that gave Trooper Baergen probable cause to subject Snyder to a breath test amounted to unlawful searches; (b) alternatively, the field sobriety tests amounted to custodial interrogation conducted without a prior Miranda warning or waiver; and (c) administrative revocation is barred by double jeopardy and collateral estoppel because the state dismissed DWI charges against Snyder based on the same incident. We conclude that these claims are meritless.
IV. CONCLUSION
The Division of Motor Vehicles' order revoking Snyder's license is VACATED, and this case is REMANDED with directions to conduct a new hearing at which Snyder has an opportunity to present live testimony.
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