Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

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, 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF 

ADMINISTRATION, DIVISION 

OF MOTOR VEHICLES, 

Appellee. 

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) Supreme Court No. S-15017 

Superior Court No. 4FA-11-01772 CI 

O P I N I O N 

No. 6970 - November 28, 2014 

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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 and Kathryn Vogel, Assistant Attorneys 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 

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. 

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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). 

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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. 

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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 

7	 8 seizure violations in license revocation proceedings. Citing State v. Sears, 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. 

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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 crossexamination 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. 

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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). 

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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). 

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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). 

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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...) 

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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. 

(...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)). 

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