Opinion
Supreme Court No. S-11007.
March 30, 2005.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Ketchikan, Michael A. Thompson, Judge, Superior Court No. 1KE-01-537 CI.
Michael J. Zelensky, Ketchikan, for Appellant.
Marilyn J. Kamm, Assistant Attorney General, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
The state revoked Frank Whitesides's driver's license following an administrative hearing conducted by telephone in which the hearing officer found that Whitesides had refused to take a breath test upon being arrested for driving while intoxicated. In Whitesides v. State, Department of Public Safety, we reversed the revocation and remanded the case for a new hearing, concluding Whitesides was entitled to testify in person so that the hearing officer could assess the credibility of his claim that he had changed his mind and asked for a test shortly after his initial refusal. But at the same time, we rejected various other arguments asserted by Whitesides, including his claims that the case should have been dismissed for insufficient evidence of refusal and for undue delay. Our decision in Whitesides fully describes the relevant pre-remand facts and proceedings, so there is no need to review them here.
Whitesides v. State, Dep't of Pub. Safety, 20 P.3d 1130, 1138-39 (Alaska 2001).
Id. at 1134 n. 4.
Id. at 1132-33.
On remand, the hearing officer considered Whitesides's in-person testimony (which tracked his earlier telephonic testimony), reviewed the complete record of the initial hearing, and confirmed the original ruling, finding that Whitesides had refused to be tested and had not changed his mind after refusing. The superior court upheld the hearing officer's decision on remand, and Whitesides renews his appeal.
Whitesides again maintains that his case should have been dismissed for undue delay and that the evidence fails to support the hearing officer's findings that he refused to be tested and never subsequently consented. But Whitesides squarely addressed and resolved these points, and our review of the record and briefing after the remand establishes no sound basis to reconsider our earlier ruling. We thus find that Whitesides controls on these points.
Id. at 1134 n. 4.
Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977) (applying doctrine of law of the case).
Whitesides also claims that the hearing officer erroneously treated the issue of subsequent consent as an affirmative defense instead of regarding it as an element of the state's case and that the hearing officer acted arbitrarily in rejecting his testimony. But neither claim has merit. The former is based on Whitesides's mistaken premise that the state's evidence was too equivocal to support a finding that he initially refused the test; the latter inaccurately characterizes the hearing officer's rejection of his testimony as a "cookie cutter credibility finding" and improperly asks us to redetermine his testimonial credibility, an issue within the province of the hearing officer.
Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283, 1286 (Alaska 1997) (this court does not reweigh evidence or choose between competing inferences).
Last, Whitesides claims that the hearing officer "misinterpreted the law in varying respects" — by ruling that it would have been too late for Whitesides to change his mind fifteen minutes after his first refusal; by failing to give adequate credit to notes that Whitesides's counsel made during his initial interview with Whitesides; and by disbelieving Whitesides for reasons unrelated to his testimony concerning refusal. Yet the hypothetical reasonableness of any delay that might have occurred between Whitesides's first refusal and his alleged subsequent change of heart amounts to a moot point in light of the hearing officer's ultimate finding that Whitesides never actually changed his mind. And our review of the record convinces us that the hearing officer's decisions not to believe Whitesides and not to rely on his counsel's interview notes were rational choices falling well within the ambit of a fact-finder's broad discretion in deciding issues of testimonial credibility.
In summary, we find no error and AFFIRM the superior court's decision affirming the administrative order revoking Whitesides's license.