Nelson v. Director, North Dakota Department of Transportation

1997 ND 81, 562 N.W.2d 562, 1997 N.D. LEXIS 75
CourtNorth Dakota Supreme Court
DecidedApril 22, 1997
DocketCivil 960232
StatusPublished
Cited by12 cases

This text of 1997 ND 81 (Nelson v. Director, North Dakota Department of Transportation) 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
Nelson v. Director, North Dakota Department of Transportation, 1997 ND 81, 562 N.W.2d 562, 1997 N.D. LEXIS 75 (N.D. 1997).

Opinion

SANDSTROM, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from a district court judgment reversing an administrative decision suspending Brian Dewain Nelson’s driving privileges. We reverse the judgment of *563 the district court and reinstate the suspension of Nelson’s driver’s license for 91 days because the evidence supports the hearing officer’s finding the report and notice form was received within five days.

I

[¶ 2] In the early morning hours of March 15,1996, a Bismarck police officer observed a vehicle with its headlights off squeal its tires as it made a U-turn. The officer stopped the vehicle and approached the driver, Brian De-wain Nelson. The officer detected an odor of alcohol, slurred speech, and bloodshot eyes. The officer testified Nelson admitted he had been drinking. The Intoxñyzer test results showed Nelson had a blood alcohol concentration of .17 percent. Nelson was arrested for driving under the influence of alcohol, under N.D.C.C. § 39-08-01.

[¶ 3] At the time of the arrest, the officer issued Nelson a temporary driving permit and a copy of the report and notice form as required under N.D.C.C. chapter 39-20 (Chemical Test For Intoxication, Implied Consent). The officer testified he gave the report and notice form to his supervisor, and, to the best of his knowledge, it was mailed to the Drivers License and Traffic Safety Division of the Department of Transportation. The report and notice form was stamped on the back “RECEIVED MAE 14 1996,” the day before Nelson was arrested.

[¶ 4] Under N.D.C.C. § 39-20-05, Nelson requested an administrative hearing on the suspension of his driver’s license. The hearing officer found the “receipt date of March 14, 1996, on the back of the document is an impossibility.” The hearing officer, however, found it “reasonable that the document was received within five days” of the date it was issued to Nelson and concluded the Department of Transportation had jurisdiction to suspend Nelson’s driving privileges. Nelson’s license was suspended for 91 days.

[¶ 5] Nelson appealed the suspension to the district court. The district court ruled the “Hearing Officer erred in concluding that the driver’s license had been forwarded to the Department of Transportation within five (5) days of issuance.” The court further concluded “the five (5) day forwarding requirement is a basic, mandatory provision of the statute and is jurisdictional.” The district court reversed the order suspending Nelson’s driving privileges. The Department of Transportation appeals.

[¶6] The appeal from the administrative agency decision to the district court was timely under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 28-32-19. The appeal from the district court was timely under N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. § 28-32-21.

II

[¶ 7] The Administrative Agencies Practice Act at N.D.C.C. chapter 28-32 governs appeals from an administrative hearing officer’s suspension of a driver’s license under N.D.C.C. § 39-20-04.1. Rudolph v. North Dakota Dept of Transp. Dir., 539 N.W.2d 63, 65-66 (N.D.1995); Erickson v. Director, North Dakota Dep’t of Transp., 607 N.W.2d 537, 539 (N.D.1993). “This Court reviews the record of the administrative agency as a basis for its decision rather than the district court decision.” Rudolph at 66; Erickson. “The decision of the agency will be affirmed ‘(1) if the findings of fact are supported by a preponderance of the evidence; (2) if the conclusions of law are sustained by the findings of fact; (3) if the decision is supported by the conclusions of law; and (4) if the decision is in accordance with law.’ ” Axtman v. Moore, 534 N.W.2d 802, 803-04 (N.D.1995) (quoting Samdahl v. North Dakota Dep’t of Transp. Dir., 518 N.W.2d 714, 716 (N.D.1994)). The hearing officer’s “[f]indings of fact must be supported by a preponderance of the evidence.” Rudolph (citing N.D.C.C. § 28-32-19(5)). “In determining whether an agency’s findings of fact are supported by a preponderance of the evidence, the standard of review is whether a reasoning mind could reasonably have determined the factual conclusions were supported by the weight of the evidence.” Rudolph; Knudson v. Director, North Dakota Dep’t of Transp., 530 N.W.2d 313, 316 (N.D.1995); Samdahl. “When reviewing drivers’ license *564 suspensions, we are confined to the record before the agency.” Samdahl.

Ill

[¶ 8] We are asked to decide whether the hearing officer erred in finding it “reasonable that the [report and notice form] was received within five days” of the date it was issued to Nelson and, if it was not, whether forwarding within five days under N.D.C.C. § 39-20-03.1(3) is a jurisdictional requirement.

A

[¶ 9] Under N.D.C.C. § 39-20-03.1:

“If a person submits to a test under section 39-20-01, 39-20-02, or 39-20-03 and the test shows that person to have an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle, the following procedures apply:
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“3. The law enforcement officer, within five days of the issuance of the temporary operator’s permit, shall forward to the director a certified written report in the form required by the director.”

In this case, Nelson was issued a temporary operator’s permit on March 15, 1996. The hearing officer found the receipt date of March 14, 1996, was an “impossibility” because the report was issued March 15, 1996, but “it [was] reasonable that the document was received within five days.”

B

[¶ 10] We addressed a similar issue in Axtman v. Moore, 534 N.W.2d 802 (N.D.1995). In Axtman, the defendant was arrested for driving under the influence on November 10, 1994. Axtman at 802. The “report and notice form was stamped received by the Department on ‘Nov. 10, 1993.’ ” Axtman at 803. Because all other evidence before the hearing officer was dated November 10, 1994, this Court concluded “it was permissible for the hearing officer to reasonably infer from the evidence that the report and notice form was actually received on November 10, 1994, not November 10, 1993, and that the date stamp showing otherwise was simply a mistake.” Axtman at 804. We reversed the district court and reinstated the ninety-one day suspension of Axtman’s driving privileges.

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Bluebook (online)
1997 ND 81, 562 N.W.2d 562, 1997 N.D. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-director-north-dakota-department-of-transportation-nd-1997.