Urie v. ADMINISTRATIVE DIRECTOR OF COURTS

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

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NO. 29774 m co
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IN THE INTERMEDIATE COURT OF APPEALS a
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OF THE STATE OF HAWAII
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ALAN D. URIE, Petitioner-Appellant,
Vv.
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI'I,
Respondent -Appellee

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(JR No. 1DAA-09-0002; Original Case No. 08-04412)

SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Leonard, J., and
Circuit Judge Ayabe, in place of Foley, Fujise,
Reifurth, and Ginoza, JJ., all recused)

Petitioner-Appellant Alan D. Urie (Urie) appeals from

(Judgment) entered on March 9, 2009, by

the Judgment on Appeal
(district court) .4/ The

the District Court of the First Circuit
district court affirmed the administrative revocation of Urie's
driver's license by Respondent-Appellee Administrative Director

of the Courts, State of Hawai‘i (Director), acting through a

hearing officer of the Administrative Driver's License Revocation

Office (ADLRO) .2/
On appeal, Urie argues that the district court erred in

affirming the decision of the ADLRO hearing officer because
"(t]he hearing officer unlawfully increased Urie's license
revocation period in retaliation for [Urie's] request for a
hearing without due process and without sufficient basis in the

2 The Honorable William A. Cardwell presided.

2/ Hawaii Revised Statutes (HRS) § 291E-1 (2007) states that "'Director'
means the administrative director of the courts or any other person within the
judiciary appointed by the director to conduct administrative reviews or
hearings or carry out other functions relating to administrative revocation

under part III [entitled ‘Administrative Revocation Process']."

same

tes

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NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

record to justify such an increase." We disagree with Urie's
arguments and affirm the district court.
I.

Officer Albert Lee (Officer Lee) observed Urie driving
through the intersection of South King Street and Kalakaua Avenue
at 11:44 p.m. on August 27, 2008.. Urie's vehicle was traveling
at a high rate of speed, which Officer Lee estimated was
substantially in excess of the speed limit. Officer Lee noticed
that Urie did not slow down for other cars attempting to enter
the roadway or maneuvering into or out of parking stalls on the
same side of the roadway. Officer Lee also observed Urie's —
vehicle straddle an adjacent lane. Officer Lee stopped Urie's
vehicle at the intersection of. South King Street and Hauoli
Street.

Urie had a strong odor of alcohol, his eyes were red,
watery, and glassy, and he was unsteady on his feet. Urie
refused to take the standardized field sobriety test and said he
knew he would fail the test because he had been drinking all
night.

II.

Judicial review of the Director's decision to
administratively revoke a driver's license is governed by Hawaii
Revised Statutes (HRS) § 291E-40 (2007). HRS § 291E-40(c)

provides:

(c) The sole issues before the court shall be
whether the [D]irector:

(1) Exceeded constitutional or statutory authority;
(2) Erroneously interpreted the law;

(3) Acted in an arbitrary or capricious manner;

(4) Committed an abuse of discretion; or

(5) Made a determination that was unsupported by the

evidence in the record.

This is a secondary appeal from the district court's
review of the Director's decision to administratively revoke

Urie's driver's license. The standard for reviewing the district

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NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

court's decision is the right/wrong standard. Brune v. Admin.
Dir. of Courts, 110 Hawai‘i 172, 176-177, 130 P.3d 1037, 1041-42
(2006).

Til.
A.

Urie's contention that the hearing officer unlawfully
increased Urie's license revocation period in retaliation for
Urie's request for a hearing is without merit. The
administrative review officer, acting on behalf of the
Director,2/ had imposed a one-year revocation of Urie's license.
Prior to proceeding with the formal hearing, the hearing officer
advised Urie that based on her review of the existing record, she
was inclined to increase the revocation period to two years. The
hearing officer cited the fact that Urie's current arrest had
occurred "just eight months" after he had been adjudicated on his
prior alcohol enforcement contact and referred to Urie as posing
a "public safety hazzard." The hearing officer gave Urie the
option of waiving the hearing, and thereby submitting to the one-
year revocation period imposed by the administrative review
officer, or proceeding with the hearing. .

Urie decided to proceed with the hearing. At the
conclusion of the hearing, the hearing officer revoked Urie's
driver's license for two years. The hearing officer made the
following findings in support of her decision to revoke Urie's

license for two years:

This Hearing Officer finds that the record reflects,
among other things, that [Urie] was traveling intoxicated at
a high rate of speed on a week night and could have caused
more than a few accidents. This Hearing Officer finds that
coupled with the 2008 alcohol enforcement contact (January
16, 2008), it appears that [Urie] poses a significant
traffic safety hazard on the public roadways, and the
revocation period shall be two years.

The record does not support Urie's argument that the

hearing officer retaliated against Urie for demanding a hearing.

The hearing officer explained that her statements regarding her

3/ See footnote 2, supra.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

pre-hearing inclination to increase the period of revocation were
not intended as a threat to retaliate against Urie for requesting
a hearing, but simply represented her providing Urie with notice
of her inclination based upon her review of the existing record.

As the district court found:

The Hearing Officer was simply providing guidance to [Urie]
and his attorney for their use in deciding to proceed with
the hearing. The Hearing Officer could not know what facts
or argument [Urie] may have had to rebut the record as it
stood at that point. Only [Urie] and his attorney knew his
case. Attempting to assist [Urie] in making a decision
whether or not to proceed with a hearing is not punishment
for proceeding.

B.

Urie contends that the hearing officer was not
authorized to increase the revocation period set by the
administrative review officer where (1) there was no new evidence
presented at the hearing, but (2) even less evidence because the
hearing officer struck the intoxilyzer test results. Urie
further contends that the hearing officer could not rely on the
fact that Urie was a repeat offender to increase Urie's
revocation period. We conclude that Urie's contentions lack
merit.

In 2005, the Hawai‘i Supreme in Custer v. Admin. Dir.
of the Courts, 108 Hawai‘i 350, 356, 120 P.3d 249, 255 (2005),
held that under the then-existing statutes, the Director, acting

through an ADLRO hearing officer during the administrative
hearing process, did not have the authority to increase the
period of revocation imposed by the administrative review
decision. In 2006, the Legislature amended HRS § 291E-38 to
expressly authorize the Director, acting through an ADLRO hearing
officer, to impose up to the maximum period of revocation during
the administrative hearing process. 2006 Haw. Sess. Laws Act
201, § 4 at p. 866. The amendment added subsection (d) (6) which
states: "The [D]irector shall conduct the hearing and have
authority to: . . . (6) Impose up to the maximum license

revocation period as specified under section 291E-41(b)[.]" HRS
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

§ 291E-38(d) (6) (2007). HRS § 291E-38(d) (6) does not limit the
circumstances under which the Director, acting through an ADLRO
hearing officer, is authorized to impose up to the maximum period
of revocation. We conclude that pursuant to HRS § 291E-38, the
hearing officer was authorized to increase Urie's period of
revocation to two years.

We reject Urie's argument that because HRS § 291E-41
(2007) provides for an increased maximum period of revocation for
a repeat offender, the hearing officer could not rely upon Urie's
status as repeat offender to increase his revocation period. It
is Urie's status as a repeat offender that subjects him to the
increased two-year revocation period. The Legislature
specifically authorized the increased revocation period for
repeat offenders. We see no reason why the hearing officer could
not rely on Urie's status as a repeat offender to impose the
increased revocation period.

In any event, the record demonstrates that the hearing
officer relied upon more than Urie's mere status as a repeat
offender. The hearing officer cited both (1) Urie's dangerous
conduct at the time of his arrest ("traveling intoxicated at a
high rate of speed on a week night and could have caused more
than a few accidents") and (2) the short time between his arrest
and his prior alcohol enforcement contact as support for her
decision to increase Urie's revocation period.

Cc.

Finally, Urie argues that the Director's failure to
promulgate rules establishing criteria for an ADLRO hearing
officer to increase the revocation period violates due process.
We disagree. Here, the hearing officer provided a written
justification for her decision to increase Urie's revocation
period, and her decision was supported by the record. We
conclude that Urie's due process rights were not violated.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

IV.
The March 9, 2009, Judgment of the district court is
affirmed.
DATED: Honolulu, Hawai'i, June 28, 2010.

On the briefs:

Earle A. Partington UM.
for Petitioner-Appellant Chief Judge

Rebecca A. Copeland
Deputy Solicitor General
for Respondent -Appellee

Acting Associa¥e Judge