dissenting.
I dissent from today's ruling for two reasons. First, I disagree with the court's implied finding that Whitesides adequately raised before the hearing officer his claim that due process required an in-person hearing because credibility was a central issue. In fact, nowhere in the entire administrative record of this case is the word "credibility" found. What Whitesides did, in shotgun fashion, was raise several non-specific claims, to one of which this court has now, after the fact, attached a particular meaning that the record does not support. Second, and more important, the statute in question, properly applied by hearing officers of the Department of Public Safety whose decisions are reviewable by this court, protects the due process rights of drivers who face license revocation for refusal to submit to tests.
Whitesides did not request an in-person hearing on grounds that credibility would be at issue.
Whitesides first requested an in-person hearing in Ketchikan because of the number *1140of witnesses involved: "[Mly client requests that his administrative hearing of his license revocation be held in person in Ketchikan. In other words, this hearing should be conducted by the Hearing Officer in Ketchikan. This is due to the number of witnesses to be called." (Emphasis added.) Later, after the department scheduled a telephonic hearing, he filed an "Objection To Administrative Hearing (and Request for Telephonic [sic] Hearing)" in which he objected to the DMV's notice of telephonic hearing. He stated:
The failure to allow a hearing in-person would substantially prejudice the rights of licensee, in that he is a witness along along [sic] with, if necessary, the arresting officer and potentially another witness (in rebuttal, Trevor Stephens, Asst. DA). Because of the number of diverse witnesses, any hearing should be in Ketchikan, not by telephone, and licensee requests the hearing in Ketchikan.
(Emphasis added.) In short, Whitesides's argument was that the number of witnesses required the hearing in Ketchikan, not that credibility was his concern. Finally, shortly before the hearing Whitesides filed "Additional Objections to Hearing." While he argued several ways 1 in which his due process rights would be violated by the upcoming hearing, he made no mention of the fact that it was to be telephonic or that credibility was an issue. In these cireumstances, I cannot join the court's implied finding that White-sides adequately raised credibility as the reason for requesting an in-person hearing.
Alaska Statute 28.15.166(e) protects the due process rights of drivers faced with administrative revocation of their licenses for failure to submit to tests.
The statute gives the hearing officer the power to require an in-person hearing if it is necessary to protect the rights of the driver or for other reasons:
The hearing under this section must be held by telephone unless the hearing officer finds that a telephonic hearing would substantially prejudice the rights of the person involved in the hearing or that an in-person hearing is necessary to decide the issues to be presented in the hearing.[2]
It seems clear that the legislature was concerned precisely about the issues addressed in today's opinion and set out the procedure by which those issues should be addressed. And in this case, the hearing officer considered the non-specific request for an in-person hearing, properly determined that it did not set out sufficient grounds, notified counsel for Whitesides of its deficiency, and specifically invited supplementation of the request for an in-person hearing:
This letter is in reference to y[ojur motion for an in person hearing for your client Frank Whitesides. The rescheduling of the hearing does not change the issues for review under AS 28.15.166(g). The statutes governing the issues remain the same and were in place at the time of your client's arrest. Your motion is denied.
We do not believe that rescheduling a hearing to a telephonic hearing denies any participant their rights under due process. Your motion did not establish any circumstances that would substantially prejudice the rights of the parties involved or that an in person hearing is necessary to decide the issues.
If there are circumstances that we have mot been advised of, you should present them at the hearing. Please contact this office if you have any questions.
(Emphasis added.) Whitesides failed to respond to the letter or to advise the hearing officer at the hearing of those "cireumstances that [the hearing officer had] not been advised of" that would lead her to reverse her decision not to provide an in-person hearing.
*1141The statute establishes the proper standard to protect the right of the driver to an in-person hearing.3 Such a hearing will be afforded if a telephonic hearing substantially prejudices any party or if an in-person hearing is necessary to decide any issues.4 In this case the hearing officer properly determined that "the number of witnesses" was not a sufficient reason to require an in-person hearing, that is, did not substantially prejudice the rights of the parties nor establish that an in-person hearing was necessary to decide the issues. But she went further and noted the standard for Whitesides and invited further information or argument on the issue. Under these cireumstances, there is no reason to construe the statute further and no reason to provide relief to a litigant who neither raised the credibility issue originally nor when requested by the hearing officer to provide any further reason for the relief he sought.
Our jurisprudence makes clear the case-specific nature of the application of discretionary rules regarding telephonic versus in-person proceedings.5 We ourselves have adopted a rule for telephonic proceedings that adopts the standard-absence of substantial prejudice-utilized by the legislature in AS 28.15.166(e):
The court may allow one or more parties, counsel, witnesses or the judge to participate telephonically in any hearing or deposition for good cause and in the absence of substantial prejudice to opposing parties.[6]
Especially in rural areas of the state, trial courts not uncommonly allow telephonic proceedings where the judge is in one location, a witness in another, and the attorneys in another.
The court should review the department's action in light of the specific facts of each case under the standard that we have always utilized, abuse of discretion.7 Because I believe that in this case the hearing officer did not abuse her discretion in declining to order an in-person hearing where the reason advanced was "the number of witnesses," and where no mention was made of assessing the credibility of the witnesses, I would find no abuse of discretion and affirm the superior court's affirmance of the hearing officer's action.
. Whitesides argued that it was a violation of due process for DMV to act without regulations adopted by the commissioner; that "[rlevocation of a driver's license requires the full panoply of due process protections, including a jury trial"; that his conduct was "indisputably safe conduct: safely parked and braked, and safely warding off hypothermia"; and that federal law makes clear that any revocation can be only temporary and that the delay in his case of more than six months was more than temporary.
. AS 28.15.166(e).
. See id.
. See id.
. Compare Gregg v. Gregg, 776 P.2d 1041, 1044 (Alaska 1989) (trial court did not abuse discretion in allowing telephonic testimony of material witness over objection) with Silvers v. Silvers, 999 P.2d 786, 790 (Alaska 2000) (trial court abused discretion in precluding party from testifying telephonically).
. Alaska R. Civ. Proc. 99.
. See Silvers, 999 P.2d at 790; Carvalho v. Carvalho, 838 P.2d 259, 262 (Alaska 1992).