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Pasco v. State4/12/2002
I. INTRODUCTION
Jeffery Pasco attempted to operate a Plymouth station wagon while he was significantly intoxicated. He claimed at his administrative license revocation proceeding that he was trying to move the vehicle because it was on fire and the fire threatened his nearby home. The hearing officer rejected this "necessity" defense. We affirm, because substantial evidence supports the hearing officer's finding that Pasco was not attempting to drive the car in response to an emergency.
II. FACTS AND PROCEEDINGS
Jamie and Bruce Oskolkoff woke up very early on the morning of April 24, 1999 to a strange sound. They investigated and discovered that one of their next-door-neighbor's vehicles was on fire and that the engine was roaring. Jamie dialed 911 at about 3:15 a.m. and reported the incident to the operator while Bruce rescued their neighbor, Jeff Pasco, from the burning vehicle. Paramedics transported Pasco and Bruce to the local emergency room to treat them for illness related to smoke inhalation. The vehicle, a 1993 Plymouth station wagon, was completely destroyed by the fire.
Trooper Ted VanAntwerp contacted Pasco at the hospital and "observed Pasco to have red, watery eyes, and an odor of alcohol on his person." Pasco told Trooper VanAntwerp that he had consumed approximately seven drinks between 7:00 p.m. and 2:00 a.m. at the American Legion in Ninilchik, and had driven home shortly thereafter. After the treating physician determined Pasco was fit to leave, Pasco submitted to and failed a series of field sobriety tests in the hospital parking lot. Trooper VanAntwerp escorted Pasco to the Soldotna Alaska State Trooper station and administered an Intoximeter test. The test indicated a breath alcohol concentration of 0.177 percent at 6:45 a.m. VanAntwerp issued Pasco a Notice and Order of Revocation for driving while intoxicated, and Pasco requested a hearing to contest the revocation. Parallel criminal proceedings were dismissed by the state under Alaska Criminal Rule 43(a) on August 28, 1999.
The hearing officer affirmed the trooper's action in a telephonic hearing in July 1999 and revoked Pasco's privilege to drive for one year. Pasco appealed to the superior court, which affirmed the decision of the Department of Public Safety in a Memorandum Decision in September 2000.
Pasco did not dispute the presence of any of the elements of the offense of driving while intoxicated in his hearing or in his appeal to the superior court. Rather, he argued that the defense of necessity should apply because he only attempted to drive while intoxicated in order to protect his home and dog against the risk of fire posed by the burning vehicle. His appeal to this court renews this defense and also raises due process challenges.
III. DISCUSSION
A. Standard of Review
Alaska Statute 28.15.166(m) sets out the standards applicable to the superior court's review of a driver's license revocation by the Department of Public Safety:
The judicial review shall be on the record, without taking additional testimony. The court may reverse the [hearing officer]'s determination if the court finds that the [hearing officer] misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record.
Because we independently review the hearing officer's decision, we apply the same standard of review. Accordingly, we apply the "substitution of judgment" test to legal questions not involving agency expertise, and review factual findings to ensure they are supported by "substantial evidence." We consider constitutional question
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