Cox v. Hjelle

207 N.W.2d 266, 1973 N.D. LEXIS 173
CourtNorth Dakota Supreme Court
DecidedApril 13, 1973
DocketCiv. 8836
StatusPublished
Cited by5 cases

This text of 207 N.W.2d 266 (Cox v. Hjelle) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. Hjelle, 207 N.W.2d 266, 1973 N.D. LEXIS 173 (N.D. 1973).

Opinions

STRUTZ, Chief Justice.

The petitioner, respondent herein, was convicted four times within a period of two years for speeding. In each instance he was charged with and convicted of driving in excess of ten miles over the speed limit. Upon receipt of this record of convictions, the Highway Commissioner suspended the driver’s license of the petitioner for sixty days, under authority of Section 39-06-32, subsection 7, North Dakota Century Code, as amended.

When he was notified of the suspension of his driving privileges, the petitioner requested a hearing as provided for in Section 39-06-33, North Dakota Century Code. Following that hearing, the Commissioner affirmed the suspension, and this appeal was taken from the Commissioner’s order. The district court, after hearing, made its findings of fact, conclusions of law, and order for judgment canceling the order of suspension of such license. The Commissioner now appeals to this court 'from the order and judgment of the district court canceling his order of suspension.

Subsection 7 of Section 39-06-32, North Dakota Century Code, as amended, gives to the Commissioner the authority to suspend an operator’s license, without preliminary hearing, when it appears from the High[268]*268way Department records or other sufficient evidence that the licensee:

“7. Has been convicted four times of a misdemeanor, violation or offense on the highways, roads or streets, involving the movement of a vehicle within the preceding two-year period; provided said violations or offenses do not arise out of the same accident or occurrence or a conviction for speeding when the offense was less than ten miles per hour over the limit.”

The next section of the Code, Section 39-06-33, goes on to provide that upon suspension of the driver’s license of any person, as authorized in Section 39-06-32, the Commissioner shall immediately notify the licensee in writing, “and upon his request shall afford him an opportunity for a hearing as early as practical within not to exceed twenty days . . .” Such hearing was requested by the petitioner herein, and was held. At that hearing it appeared that the records disclosed that the licensee had been convicted four times of speeding within the previous two-year period. In each case the licensee was given an opportunity to be heard. The record discloses that in each instance the petitioner had been traveling in excess of ten miles per hour over the speed limit. In each of the four cases the licensee had not appeared to refute the charge although full opportunity was afforded him, and he had forfeited the bond which was posted at the time of his arrest. At the conclusion of the hearing, the Commissioner affirmed his previous order of suspension.

The petitioner thereupon appealed to the district court. The review by that court, as provided for in Section 39-06-39, North Dakota Century Code, is to deter-’ mine whether there were reasonable grounds under the statutes for the decision which was made by the Commissioner. The decision of the district court is made subject to appeal by either the petitioner or the Highway Commissioner, and on such appeal the Supreme Court determines the matter de novo upon the record which was made in the district court. The de novo hearing, however, is limited to ascertaining whether reasonable grounds existed for the determination of the Commissioner.

At the hearing in the district court, the petitioner did not deny that he had been driving in excess of ten miles per hour over the speed limit on each of the four occasions when he was charged with speeding and for which he was convicted. He sought, however, to justify his excessive speed in the case of his fourth arrest on the ground that he had received a call for help from the operator of a truck hauling beets whose truck had broken down on the highway. He asserted that this situation created a hazard on the highway which he felt justified his excessive speed.

The trial court reversed the order of suspension issued by the Highway Commissioner. From the order of the district court so dismissing the Commissioner’s order of suspension, the Commissioner has appealed to this court.

As pointed out above, the decision of the district court determining whether reasonable grounds existed for the action taken by the Highway Commissioner under the law is appealable by the Commissioner. On such appeal, this court proceeds to hear the matter de novo on the record of proceedings had in the district court. We have examined that record, and it reveals that the defendant had been convicted four times within the previous two-year period of speeding, and that in each instance the petitioner had forfeited bail which had been posted at the time of his arrest without appearing for trial, although opportunity for hearing was afforded him in each case. Such forfeiture of bail is the equivalent of conviction of the charges against him. Sec. 39-06-30, N.D.C.C. Thus the record of proceedings before the district court discloses without any question that the licensee had been convicted four times of speeding and that each of the offenses was for traveling more than ten miles per [269]*269hour above the speed limit. It further appears that the order of the Commissioner suspending his license was based on such record.

The district court apparently felt that since no accident resulted from any of the violations of the petitioner, the Commissioner did not have reasonable grounds under the statute to order the suspension of petitioner’s driver’s license. In this we believe the district court is in error. The State is not helpless in a situation of this kind until someone is seriously injured or killed. The record discloses that the order of suspension was based on the showing that the petitioner had been convicted four times within a two-year period of a violation involving the movement of his motor vehicle on the highways, and that each of such convictions was for speeding, and that each conviction was for speeding in excess of ten miles per hour over the speed limit. The fact that no accident resulted or that, in the mind of the court, some of the violations were not excessive under the facts presented is immaterial.

The petitioner cites the case of Morrell v. Hjelle, 128 N.W.2d 728 (N.D.1964), which involved facts similar to the case at bar and in which this court reversed the suspension order of the Highway Commissioner because the State had not shown that the convictions of the petitioner had been for offenses of a serious nature. In 1964, when this court decided Morrell, the law provided that the Commissioner must show, as a condition of suspension of a license, that the licensee had been convicted of “serious offenses”; that the Commissioner, under the law as it was in force at that time, was required to consider the circumstances surrounding each violation to determine whether it was a serious violation. The Commissioner in that case had not done so. However, after the decision in Morrell, the Legislature amended the law, and all that the Commissioner now must show as grounds for suspension is that the licensee has been convicted four times within a two-year period of offenses involving the movement of a vehicle on the highway; that the convictions do not arise out of the same occurrence; and that, if the violations are speeding, the convictions be for traveling at a speed in excess of ten miles per hour over the speed limit. Sec. 39-06-32, subsec. 7, N.D.C.C.

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431 U.S. 105 (Supreme Court, 1977)
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Gleason v. Department of Transportation
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Cox v. Hjelle
207 N.W.2d 266 (North Dakota Supreme Court, 1973)

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Bluebook (online)
207 N.W.2d 266, 1973 N.D. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-hjelle-nd-1973.