concurring.
The result the court reaches here is correct, but I disagree with the court's analysis. In my view, Justice Carpeneti's dissent correctly reasons that a case-specific inquiry is required when deciding whether due process demands that a hearing in a driver's license revocation case be held in person. In comparison, the court's opinion may assume that every driver's license revocation inherently raises credibility issues and that it is not necessary to make a particularized request for an in-person hearing by identifying logically valid reasons why the hearing must be held live.
Even though I agree with Justice Carpen-eti that the inquiry must be case-specific, I agree with the result reached by the court.
It is a close question whether Whitesides informed the hearing officer of circumstances that made it an abuse of discretion to deny his request. But on balance, Whitesides did enough. In his request for administrative hearing, Whitesides, through counsel, asserted that "I did not refuse to take a breath test." In his objection to an administrative hearing, he stated, again through counsel, that "the failure to allow a hearing in-person would substantially prejudice the rights of licensee, in that he is a witness along with, if necessary, the arresting officer...." These assertions might have been more specific, but together they should have led the hearing officer to realize that Whitesides was denying that he had refused to be tested, and that he and the arresting officer would disagree about whether he had refused. This disagreement inherently raised a credibility issue that was critical to the limited issues relevant to his revocation proceeding. It was therefore an abuse of discretion to deny Whitesides an opportunity to present live testimony to the hearing officer.
I therefore concur in the result the court reaches although I respectfully disagree with its analysis.