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MCGHEE v. STATE1/23/1998
Robert M. McGhee's driver's license was administratively revoked following his arrest for driving while intoxicated (DWI). The revocation was enhanced to reflect two prior DWI convictions. McGhee subsequently obtained a court order vacating one of the prior convictions and was then reconvicted. Given the new conviction date for the prior DWI, McGhee now has only one DWI conviction predating the arrest that triggered his revocation. Does this change entitle McGhee to a shorter period of revocation? We conclude that it does not. Because McGhee remains convicted of the same DWIs that subjected him to an enhanced revocation, the temporary set-aside of the prior DWI requires no alteration of the original revocation.
I. BACKGROUND
On October 21, 1994, McGhee was arrested for DWI. After taking and failing a breath test, McGhee was notified that the DMV would revoke his driver's license. Following a hearing on January 9, 1995, before a DMV hearing officer, the DMV issued an order affirming its notice of revocation; since McGhee had previously been convicted of DWI in 1985 and 1989, the period of revocation was fixed at three years. McGhee was represented by counsel at the DMV hearing but did not question the validity of his prior DWI convictions or challenge the enhanced period of revocation. McGhee was informed of his right to appeal the revocation within thirty days but did not do so.
Approximately six months passed. On June 16, 1995, in a district court hearing on his 1994 DWI charge, McGhee moved to set aside his 1989 DWI conviction. He argued that his original plea of no contest in that case was defective because the court failed to expressly advise him of his right to a jury trial. After reviewing the record of the 1989 change of plea hearing, District Court Judge William Fuld granted McGhee's motion and vacated the prior conviction. McGhee immediately re-entered a no contest plea to the 1989 charge; he then pled no contest to the 1994 DWI, and Judge Fuld imposed sentences for both the 1989 and 1994 DWIs.
Another six months later, McGhee returned to the DMV, seeking a reduction of his enhanced period of license revocation. McGhee reasoned that because the withdrawal and re-entry of his no contest plea had changed the conviction date for his 1989 DWI, he now had only one DWI conviction that was entered before the date of his arrest on the 1994 DWI. On this basis, McGhee asked the DMV to "roll back" his three-year license revocation to one year, the mandatory period of revocation for a DWI arrestee with one prior DWI conviction.
The DMV refused to reduce the period of revocation, concluding that the "change in conviction date does not require the to reconsider and amend the administrative action entered prior to the court action." The DMV also noted that its hearing officer correctly based the period of revocation "on the record at the time of the hearing" and that McGhee withdrew his plea on the 1989 DWI after the agency action had become final. McGhee appealed to the superior court, which affirmed the DMV's decision. McGhee then filed this appeal.
II. DISCUSSION
On appeal, McGhee renews the arguments he advanced before the DMV and the superior court. He claims that the June 16, 1995, withdrawal and re-entry of his no contest plea on the 1989 DWI left only one DWI conviction entered prior to his 1994 DWI arrest. McGhee insists that this change in circumstances required the DMV to issue a revised revocation order reflecting the current chronology of his driving record.
We disagree. Under AS 28.15.165, the DMV is authorized to revoke the license of any driver who fails a breath test administered following a
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