{ "id": 322292, "name": "Gilbert Lynn EVANS, Plaintiff-Appellee, v. STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Defendant-Appellant", "name_abbreviation": "Evans v. State", "decision_date": "1996-06-21", "docket_number": "No. 16645", "first_page": "216", "last_page": "220", "citations": [ { "type": "official", "cite": "122 N.M. 216" }, { "type": "parallel", "cite": "922 P.2d 1212" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "652 F.2d 146", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3534872, 1251487 ], "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/209/0153-01", "/f2d/652/0146-01" ] }, { "cite": "888 P.2d 466", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1994, "opinion_index": 0 }, { "cite": "119 N.M. 20", "category": "reporters:state", "reporter": "N.M.", "year": 1994, "opinion_index": 0 }, { "cite": "510 U.S. 540", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 235096 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "564-66", "parenthetical": "Kennedy, J., concurring" }, { "page": "1162", "parenthetical": "Kennedy, J., concurring" }, { "parenthetical": "Kennedy, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/us/510/0540-01" ] }, { "cite": "119 N.M. 29", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561298 ], "weight": 2, "pin_cites": [ { "page": "40" }, { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0029-01" ] }, { "cite": "428 N.W.2d 335", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "338", "parenthetical": "en banc" }, { "page": "340" } ], "opinion_index": 0 }, { "cite": "431 Mich. 172", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1989450 ], "year": 1988, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/mich/431/0172-01" ] }, { "cite": "475 N.E.2d 1068", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1070" } ], "opinion_index": 0 }, { "cite": "86 Ill.Dec. 689", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1985, "pin_cites": [ { "page": "691" } ], "opinion_index": 0 }, { "cite": "131 Ill.App.3d 430", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3438396 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0430-01" ] }, { "cite": "466 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "706-07", "parenthetical": "citing Ill.Rev.Stat. ch. 23, para. 11-8.2 (1983)" } ], "opinion_index": 0 }, { "cite": "81 Ill.Dec. 117", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1984, "pin_cites": [ { "page": "120-21", "parenthetical": "citing Ill.Rev.Stat. ch. 23, para. 11-8.2 (1983)" } ], "opinion_index": 0 }, { "cite": "125 Ill.App.3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633283 ], "year": 1984, "pin_cites": [ { "parenthetical": "citing Ill.Rev.Stat. ch. 23, para. 11-8.2 (1983)" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0847-01" ] }, { "cite": "72 Or.App. 486", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2345833 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "telephonic hearing satisfied statutory requirement for a fair hearing" }, { "page": "20-21", "parenthetical": "telephonic hearing satisfied statutory requirement for a fair hearing" } ], "opinion_index": 0, "case_paths": [ "/or-app/72/0486-01" ] }, { "cite": "551 A.2d 195", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "200" } ], "opinion_index": 0 }, { "cite": "229 N.J.Super. 264", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 290746 ], "opinion_index": 0, "case_paths": [ "/nj-super/229/0264-01" ] }, { "cite": "345 N.W.2d 42", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10666930 ], "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nw2d/345/0042-01" ] }, { "cite": "884 F.2d 516", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11349124 ], "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/f2d/884/0516-01" ] }, { "cite": "21 F.3d 1059", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11323373 ], "weight": 2, "pin_cites": [ { "page": "1064", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/f3d/21/1059-01" ] }, { "cite": "98 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582432 ], "weight": 2, "pin_cites": [ { "page": "43" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0039-01" ] }, { "cite": "781 P.2d 305", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1988, "opinion_index": 0 }, { "cite": "109 N.M. 33", "category": "reporters:state", "reporter": "N.M.", "year": 1988, "opinion_index": 0 }, { "cite": "108 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592854 ], "weight": 2, "pin_cites": [ { "page": "127" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0124-01" ] }, { "cite": "895 P.2d 671", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.M. 771", "category": "reporters:state", "reporter": "N.M.", "year": 1995, "opinion_index": 0 }, { "cite": "120 N.M. 29", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558950 ], "weight": 2, "pin_cites": [ { "page": "34" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0029-01" ] }, { "cite": "117 N.M. 785", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552556 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "793", "parenthetical": "adopting rule for retracting refusal to take blood-alcohol test" }, { "page": "1096", "parenthetical": "adopting rule for retracting refusal to take blood-alcohol test" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0785-01" ] }, { "cite": "883 P.2d 1282", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1994, "opinion_index": 0 }, { "cite": "118 N.M. 585", "category": "reporters:state", "reporter": "N.M.", "year": 1994, "opinion_index": 0 }, { "cite": "118 N.M. 624", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563475 ], "weight": 2, "pin_cites": [ { "page": "626" }, { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0624-01" ] }, { "cite": "1984 U.Ill.L.Rev. 445", "category": "journals:journal", "reporter": "U. Ill. L. Rev.", "pin_cites": [ { "page": "472-75", "parenthetical": "discussing problems found in study of telephonic hearings" } ], "opinion_index": 0 }, { "cite": "38 U.Miami L.Rev. 647", "category": "journals:journal", "reporter": "U. Miami L. Rev.", "year": 1984, "pin_cites": [ { "parenthetical": "discussing positive outcome of field test" } ], "opinion_index": 0 }, { "cite": "31 Admin.L.Rev. 485", "category": "journals:journal", "reporter": "Admin. L. Rev.", "year": 1979, "pin_cites": [ { "parenthetical": "describing implementation of telephonic procedures" } ], "opinion_index": 0 }, { "cite": "99 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584523 ], "weight": 8, "year": 1982, "pin_cites": [ { "page": "268", "parenthetical": "Supreme Court adopting Wood, J., dissent" }, { "page": "124", "parenthetical": "Supreme Court adopting Wood, J., dissent" }, { "page": "262" }, { "page": "118" }, { "page": "268" }, { "page": "124" }, { "page": "262" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0261-01" ] } ], "analysis": { "cardinality": 939, "char_count": 16920, "ocr_confidence": 0.687, "pagerank": { "raw": 5.383216101058457e-08, "percentile": 0.337219853358246 }, "sha256": "579358e682c0d10363dfe5c10bd713f6aa85284336e27bb94098dcc0864f3535", "simhash": "1:2a23fdcbb601f5a3", "word_count": 2636 }, "last_updated": "2023-07-14T15:23:55.699803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and HARTZ, JJ., concur." ], "parties": [ "Gilbert Lynn EVANS, Plaintiff-Appellee, v. STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBOSSON, Judge.\n1. We are presented with the following question: Under the Implied Consent Act may the Department of Motor Vehicles (\u201cDMV\u201d or \u201cthe Department\u201d) conduct license revocation hearings telephonically for DWI offenses without the physical presence of the hearing officer? We hold that the statute, NMSA 1978, Section 66-8-112(B) (Repl.Pamp.1994), does not authorize telephonic revocation hearings, and therefore under current law these hearings are required to be held in person.\nFACTUAL BACKGROUND\n2. Defendant was arrested for driving under the influence of alcohol in Otero County. He submitted to a breath test under the Implied Consent Act. See NMSA 1978, \u00a7\u00a7 66-8-105 to -112 (Repl.Pamp.1994). The results indicated that he had a blood-alcohol level of .14, well over the .08 limit provided by state law. See \u00a7 66-8-110(C); NMSA 1978, \u00a7 66-8-102(0) (Repl.Pamp.1994). Defendant was then served with a notice of license revocation pursuant to Section 66-8-111.1, and upon Defendant\u2019s request, a license revocation hearing was duly scheduled. See \u00a7 66-8-112. The hearing was conducted telephonically by a DMV hearing officer located in Santa Fe. Defendant, his attorney, and the arresting officer were all present in the DMV field office in Otero County. A speaker phone and a facsimile machine were made available for use by the parties, fendant objected to the telephonic hearing, arguing that the applicable statute, Section 66-8-112(B), requires the entire hearing to take place in the county where the DWI offense occurred. The hearing officer overruled the objection. Following the hearing, Defendant\u2019s driving privileges were revoked for ninety days. See \u00a7 66 \u2014 8\u2014111(C)(1). Defendant appealed to the district court for Otero County which reversed the hearing officer\u2019s decision, holding that the telephonic hearing violated Section 66-8-112(B). The district court also reinstated Defendant\u2019s driving privileges. The Department appeals. De-\nDISCUSSION\n3. Section 66-8-112(B) provides an administrative hearing for license revocation and states, in part, that \u201c[t]he hearing shall be held in the county in which the offense for which the person was arrested took place.\u201d The Department argues that this is a mere venue statute for the convenience of the parties which the Department can satisfy by parties giving testimony locally over the telephone to a hearing officer located in Santa Fe. Defendant, on the other hand, maintains that when the legislature prescribes a \u201chearing\u201d to be held \u201cin the county in which the offense ... took place,\u201d the legislature intends a hearing with the parties and the hearing officer in one place: \u201cin the county\u201d of the offense. Defendant has not raised a due process challenge to the Department\u2019s telephonic hearing. See State ex rel. Human Servs. Dep\u2019t v. Gomez, 99 N.M. 261, 268, 657 P.2d 117, 124 (1982) (Supreme Court adopting Wood, J., dissent). We assume, but do not decide, that the Department can conduct license revocation hearings over the telephone without violating constitutional requirements. The question before us here, however, is whether the legislature has authorized the Department to do so.\n4. We observe that for over twenty-five years this statute, Section 66-8-112(B), and its antecedents have consistently required that driver license revocation hearings \u201cshall be held in the county\u201d of the offense. 1978 N.M.Laws, ch. 35, \u00a7 520(B); 1971 N.M.Laws, ch. 68, \u00a7 6(B). Previously, to revoke a driver\u2019s license, the Department had to file a civil action in magistrate court in the county where the defendant resided. See 1969 N.M.Laws, ch 30, \u00a7 9(A). The Department acknowledges that until recently it uniformly conducted all revocation hearings in person and- has conducted them telephonically for only the past three to four, years. In fact, most revocation hearings are still held in person; the Department uses telephonic hearings only for those less populated counties where, it argues, it would be a fiscal burden to -do otherwise.\n5. Without deciding whether other New Mexico agencies are authorized to conduct telephonic hearings, we find it instructive to review statutes governing hearings by other agencies. We are advised of only two other New Mexico agencies that conduct hearings telephonically: public assistance termination proceedings and unemployment compensation eligibility hearings. See NMSA 1978, \u00a7 27-3-3 (Repl.Pamp.1995) (public assistance fair hearings); NMSA 1978, \u00a7 51-1-8(D) (Cum.Supp.1995) (unemployment compensation hearings). See generally Jerome R. Corsi & Thomas L. Hurley, Pilot Study Report on the Use of the Telephone in Administrative Fair Hearings, 31 Admin.L.Rev. 485 (1979) (describing implementation of telephonic procedures); Jerome R. Corsi et al., Major Findings of the New Mexico Experiment of Telecgnferenced Administrative Fair Hearings, 38 U.Miami L.Rev. 647 (1984) (discussing positive outcome of field test). But see Neil Fox, Telephonic Hearings in Welfare Appeals: How Much Process is Duel 1984 U.Ill.L.Rev. 445, 472-75 (discussing problems found in study of telephonic hearings).\n6. Although neither statute specifically authorizes telephonic hearings, both statutes delegate hearing procedure to administrative regulation which indicates a specific grant of administrative autonomy not found in the Implied Consent Act. Significantly, neither statute requires a hearing to be held in a particular locale as with DMV revocation proceedings. In contrast, other administrative hearing statutes, like the DMV license revocation statute, do require that a \u201chearing shall be held in the county,\u201d either of residence or where a particular act took place. See NMSA 1978, \u00a7 52-5-6(A) (Repl. Pamp.1991) (workers\u2019 compensation) (\u201cHearings shall be held in the county in which the injury ... occur[s].\u201d); NMSA 1978, \u00a7 60-6C-2 (Repl.Pamp.1994) (liquor license revocation proceeding) (\u201c[Hjearings ... shall be held in the county in which the licensed premises ... are located.\u201d); NMSA 1978, \u00a7 61-1-6 (Repl.Pamp.1993) (Uniform Licensing Act) (\u201cBoard hearings ... shall be conducted in the county in which [the licensee resides], or at the election of the board [where] the act or acts complained of occurred.\u201d); NMSA 1978, \u00a7 40-4B-6(B) (Repl. Pamp.1994) (child support hearings) (\u201cHearings shall be held in the judicial district in which the claim [arises] or ... the part[y] resides.\u201d).\n7. These statutes share certain elements in common with the statute providing for DMV license revocation proceedings. First, of course, there is the similarity of language requiring a hearing to be held in a certain place. Second, we note that in each instance the hearings can have serious consequences to the parties involved, whether it be receipt of workers\u2019 compensation or child support, revocation of a professional or commercial license, or loss of permission to drive a motor vehicle. Third, credibility is often an issue in these hearings, whether the credibility of the accused or of the accuser.\n8. In DMV license revocation proceedings, the credibility of the police officer and the driver is not infrequently at issue. By statute, the hearing officer shall decide, in part: \u201cwhether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state whale under the influence of intoxicating liquor.\u201d Section 66-8-112(E)(l). Resolving whether the law enforcement officer had \u201creasonable grounds\u201d to stop the motorist and then had \u201creasonable grounds\u201d to test the motorist for impairment can be intensely factual determinations in which credibility may become the determining factor. See, e.g., Apodaca v. State, Taxation & Revenue Dep\u2019t, 118 N.M. 624, 626, 884 P.2d 515, 517 (Ct.App.) (arresting officer\u2019s safety concerns constituted reasonable grounds for stop), cert. denied, 118 N.M. 585, 883 P.2d 1282 (1994). Additional factual issues may easily arise, including whether the driver declined to submit to a breath or blood test, whether the officer advised the motorist of the consequences of refusal, whether an initially recalcitrant driver recanted, or whether his change of mind was timely. See generally State v. Suazo, 117 N.M. 785, 793, 877 P.2d 1088, 1096 (1994) (adopting rule for retracting refusal to take blood-alcohol test); Fugere v. State, Taxation & Revenue Dep\u2019t, 120 N.M. 29, 34, 897 P.2d 216, 221 (Ct.App.) (determining whether driver\u2019s actions constituted a refusal to take a breath test is a factual question), cert. denied, 119 N.M. 771, 895 P.2d 671 (1995).\n9. Traditionally, our legal system has depended upon personal contact between the fact finder and the witness to allow the fact finder to observe the demeanor of the witness as a means of assessing credibility. A long line of New Mexico cases reserves the determination of witness credibility to the fact finder, in this case the hearing officer. See, e.g., Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.) (\u201cAn appellate court does not observe the demeanor of live witnesses, cannot see a shift of the eyes ... or. take notice of other signs that may mean the difference between truth and falsehood to the fact finder.\u201d), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988); Newman v. Basin Motor Co., 98 N.M. 39, 43, 644 P.2d 553, 557 (Ct.App.1982) (citing \u201cthe venerable rule\u201d that the credibility and weight of the testimony rests solely with the trial court, not the appellate court). In license revocation proceedings, the initial hearing with the Department hearing officer provides the driver his or her only opportunity to have a fact finder make this credibility assessment.\n10. Existing case law confirms the importance of in-person hearings when critical credibility determinations are at stake. In Gomez, our Supreme Court held that the Department of Human Services did not violate due process by using telephonic hearings in disability termination proceedings. 99 N.M. at 262, 657 P.2d at 118. However, the Court noted that hearings of this nature frequently relied on documentary medical evidence with witness credibility being only \u201ca minimal factor.\u201d Id. at 268, 657 P.2d at 124. Similarly, in Bigby v. United States I.N.S., 21 F.3d 1059 (11th Cir.1994), a deportation case cited by the Department, the federal court permitted deportation hearings to be conducted telephonically but limited its holding as follows: \u201c[W]e ... hold \u2014 that when credibility determinations are not in issue, an immigration judge may hold a hearing by telephonic means.\u201d Id. at 1064 (footnote omitted); cf. Purba v. I.N.S., 884 F.2d 516, 517 (9th Cir.1989) (when statute requires hearing to be held \u201cbefore\u201d the hearing officer, deportation proceeding may not be conducted telephonically); In re Gust, 345 N.W.2d 42, 45 (N.D.1984) (\u201cAbove all, in testimony by telephone the trier of facts is put in a difficult, if not impossible, position to take into account the demeanor of the witness in determining the witness\u2019 credibility.\u201d); Aqua Marine Prods., Inc. v. Pathe Computer Control Sys. Corp., 229 N.J.Super. 264, 551 A.2d 195, 200 (App.Div.1988) (with telephone testimony, fact finder has no basis for evaluating credibility). But see Babcock v. Employment Div., 72 Or.App. 486, 696 P.2d 19, 20-21 (1985) (telephonic hearing satisfied statutory requirement for a fair hearing).\n11.Other jurisdictions have also interpreted the statutory language \u201cin the county\u201d to require in-person hearings rather than telephonic hearings. In Sleeth v. Illinois Department of Public Aid, 125 Ill.App.3d 847, 81 Ill.Dec. 117, 120-21, 466 N.E.2d 703, 706-07 (1984) (citing Ill.Rev.Stat. ch. 23, para. 11-8.2 (1983)), the appellate court interpreted the phrase \u201c\u2018[t]he appeal shall be heard in the county where the appellant resides\u2019 \u201d to mean the place where both plaintiff and the hearing officer were located. The court concluded that telephone hearings with the plaintiff in a field office and the hearing officer in Chicago did not comply with statutory requirements. Id.; accord Padlo v. Illinois Dep\u2019t of Pub. Aid, 131 Ill.App.3d 430, 86 Ill.Dec. 689, 691, 475 N.E.2d 1068, 1070 (1985). In Detroit Base Coalition for Human Rights of the Handicapped v. Department of Social Services, 431 Mich. 172, 428 N.W.2d 335, 338 (1988) (en banc) (quoting from the rules promulgated by the DSS), the Michigan Supreme Court interpreted an administrative rule providing for a hearing \u201c\u2018in the county where a claimant resides.\u2019 \u201d The Court invalidated telephonic hearings, holding that the rule \u201ccontemplates a hearing at which the plaintiffs are present at the place where the decisionmaker is observing, considering, and evaluating the evidence.\u201d Id. at 340.\n12. Further it may not be just the credibility of the parties that is at stake in these hearings. \u201c\u2018[Jjustice should not only be done, but should manifestly and undoubtedly be seen to be done.\u2019 \u201d High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 40, 888 P.2d 475, 486 (Ct.App.) (quoting Liteky v. United States, 510 U.S. 540, 564-66, 114 S.Ct. 1147, 1162, 127 L.Ed.2d 474 (1994) (Kennedy, J., concurring) (internal quotations omitted)), certs. denied, 119 N.M. 20, 888 P.2d 466 (1994); see also Gray Panthers v. Schweiker, 652 F.2d 146, 161 (D.C.Cir.1980) (one societal goal served by an in-person hearing is the necessity for a decisionmaking procedure which is perceived as \u201cfair\u201d by the citizens). In license revocation proceedings, the presence of the hearing officer may be necessary for the participants to have a sense of fair play \u2014 that the Department has fairly considered the evidence, regardless of whether they agree with the result.\n13. We read the language in Section 66-8-112(B) in a manner most consistent with how courts of other jurisdictions have interpreted similar language, particularly when credibility issues are at stake. This interpretation is also consistent with how the Department conducted revocation hearings for the better part of the past quarter century. We are not persuaded by the Department\u2019s argument that as long as one party is in the relevant county, statutory requirements have been met.\n14. Accordingly, in the absence of clear legislative intent to the contrary, we will read the language, a \u201chearing shall be held in the county,\u201d to mean an in-person hearing held in one place in the relevant county. This is not to say that the legislature could not authorize telephonic hearings; our Supreme Court has made that clear in Gomez, 99 N.M. at 262, 657 P.2d at 118. Nonetheless, we assume the legislature would proceed cautiously in any effort to change requirements in those proceedings where credibility is at issue.\n15. Finally, we note the very real concerns of the Department regarding the potential fiscal impact of this opinion. We do not mean to minimize the importance of those concerns. The Department turned to telephonic hearings to conserve funds and in good faith spent money on equipment and personnel training. We would hope there would be ways to enable qualified persons in outlying DMV offices to conduct in-person hearings in a manner both cost-effective and sensitive to legislative intent. Also, a licensee may consent to a telephonic hearing. Absent legislative authority, we cannot ratify a procedure, however well-intentioned, that risks sacrificing accuracy for the sake of cost-effectiveness, particularly when residents of only certain rural counties are asked to bear that risk. The Department is, of course, free to take up the matter again with the legislature.\nCONCLUSION\n16. We agree with the district court\u2019s interpretation of the Implied Consent Act to require license revocation hearings to be held in person. We do not agree, however, with the action of the district court reinstating Defendant\u2019s driving privileges. The Department should be given an opportunity to conduct a proper hearing pursuant to the Implied Consent Act as clarified in this opinion. Therefore, we reverse and remand for that purpose.\n17. IT IS SO ORDERED.\nDONNELLY and HARTZ, JJ., concur.\n. The Department has not issued a formal regulation either authorizing telephonic hearings or establishing procedures for them. Although it might have been advisable to precede the use of telephonic hearings with a duly promulgated administrative regulation, that omission is not significant to our holding in this opinion.", "type": "majority", "author": "BOSSON, Judge." } ], "attorneys": [ "Tom Udall, Attorney General, Frank D. Katz, Special Assistant Attorney General, Taxation & Revenue Dep\u2019t, Santa Fe, for Appellant.", "Andrea Lenway, Mayhill, for Appellee.", "Ray Twohig, Albuquerque, for amicus curiae, N.M. Criminal Defense Lawyers Ass\u2019n." ], "corrections": "", "head_matter": "922 P.2d 1212\nGilbert Lynn EVANS, Plaintiff-Appellee, v. STATE of New Mexico, TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Defendant-Appellant.\nNo. 16645.\nCourt of Appeals of New Mexico.\nJune 21, 1996.\nCertiorari Denied Aug. 15, 1996.\nTom Udall, Attorney General, Frank D. Katz, Special Assistant Attorney General, Taxation & Revenue Dep\u2019t, Santa Fe, for Appellant.\nAndrea Lenway, Mayhill, for Appellee.\nRay Twohig, Albuquerque, for amicus curiae, N.M. Criminal Defense Lawyers Ass\u2019n." }, "file_name": "0216-01", "first_page_order": 266, "last_page_order": 270 }