dissenting.
I disagree with the majority’s conclusion that MVD’s finding that the sergeant had reasonable suspicion to stop petitioner is supported by substantial evidence. The agency relied on hearsay testimony to prove the critical fact in the case, i. e., that the sergeant saw petitioner’s motorcycle weave and developed a suspicion that he was driving while intoxicated and was not merely evading potholes, as petitioner claimed. Accordingly, we must engage in a comprehensive analysis of the record to determine whether the evidence relied on by the agency is substantial. Under Reguero v. Teacher Standards and Practices, 312 Or 402, 417, 822 P2d 1171 (1991), “we must decide whether the finding of substantiality is reasonable in the light of countervailing as well as supporting evidence.” The majority cites Reguero, but its misapplication of that case leads to an erroneous result here and jeopardizes the correct application of it in future cases. Unfortunately, that result induces a broader reliance on hearsay in numerous administrative and judicial proceedings where parties contest the facts that give rise to traffic stops.
Under Reguero, the first factor in the analysis is the alternative to relying on the hearsay evidence. Here, as in Reguero, “there was a convenient and apparently inexpensive alternative to relying on the challenged hearsay.” According to the record, the sergeant worked very near the location of the hearing. MVD had the authority to subpoena *426him. OAR 735-90-050.1 The agency offered no reason why the sergeant did not testify. “It is beyond question that * * * direct testimony is better evidence than * * * hearsay statements.” 312 Or at 419.
Another consideration is the “importance of the facts sought to be proved by the hearsay statements to the outcome of the proceeding.” 312 Or at 418. The fact “sought to be proved” in this case was that the sergeant had reasonable suspicion to stop petitioner for DUII. That fact was important to the outcome, because an invalid stop may make the subsequent arrest invalid. Pooler v. MVD, 306 Or 47, 52, 755 P2d 701 (1988).
Petitioner admitted to possibly weaving while he drove. However, that does not remove any disadvantage petitioner had from the lack of opportunity to cross-examine the sergeant. Petitioner explained that, if he was weaving, it was an attempt to avoid potholes and the poor road surface. If the sergeant was aware of but disregarded the poor condition of the road, that fact could affect the court’s decision on whether he possessed reasonable suspicion to stop petitioner. See State v. Olson, 116 Or App 525, 529, 842 P2d 424 (1992); State v. Harris, 88 Or App 433, 745 P2d 813 (1987), rev den 305 Or 103 (1988). The majority observes that “there is only slight opposing evidence in the record, and no evidence that casts doubt on the hearsay testimony.” 127 Or App at 424. That comment is incorrect and misreads Reguero. The key disputed fact is whether the sergeant saw petitioner attempt to evade potholes in the road and stopped petitioner because of that innocent conduct, rather than a reasonable suspicion that he was driving while intoxicated. Petitioner’s testimony contradicts the fact that the agency desired to prove. Evidence of the sergeant’s observations and reasons for acting is uniquely within the sergeant’s knowledge, not other witnesses’. For purposes of the Reguero analysis, there is no *427significance to the fact that other witnesses did not provide evidence about the reason that the sergeant acted.
Finally, we must consider the consequences of the decision. Although, as the majority notes, the loss of a driver’s license for a year is arguably less severe than being denied a license to practice a chosen career, this case, like Reguero, requires a finding that petitioner engaged in conduct that would constitute a crime. That makes the consequences more severe. See Reguero v. Teacher Standards and Practices, supra, 312 Or at 423 (Peterson, J., concurring). Apart from that, I am satisfied that the loss of a driver’s license for one year is a severe consequence, within the contemplation of the Reguero decision.
Applying Reguero, I conclude that, on this record, the critical finding regarding reasonable suspicion to stop petitioner is not supported by substantial evidence.
I dissent.
OAR 735-90-050 provides, in part:
“(1) Subpoenas which require the attendance of witnesses or the production of documentary or tangible evidence at a hearing shall be issued by the Hearings Case Management Unit upon receipt of a written request.
“(2) The person who requests the issuance of a subpoena shall be responsible for having the subpoena served * *