Kobilansky v. Liffrig, 10715

• Decision Date: 28 November 1984
• Docket Number: No. 10715,10715
• Citation: 358 N.W.2d 781
• Parties: Bruce KOBILANSKY, Appellee, v. Duane LIFFRIG, North Dakota Highway Commissioner, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 781

358 N.W.2d 781

Bruce KOBILANSKY, Appellee, v. Duane LIFFRIG, North Dakota Highway Commissioner, Appellant.

Civ. No. 10715.

Supreme Court of North Dakota.

Nov. 28, 1984.

Vinje Law Firm, Bismarck, for appellee; argued by Ken R. Sorenson, bismarck.

Myron E. Bothun, Asst. Atty. Gen., Bismarck, for appellant.

SAND, Justice.

The North Dakota Highway Commissioner (Commissioner) appealed from a judgment of the Burleigh County district court which reversed an administrative suspension of Bruce Kobilansky's (Kobilansky) driver's license. ¹

On 28 January 1984 Kobilansky was stopped while driving his car by the Bismarck Police Department and given a breathalyzer test which indicated a blood alcohol concentration of 0.14 percent. Kobilansky was then charged with driving while intoxicated.

As required by North Dakota Century Code Sec. 39-20-03.1 the Bismarck Police Department forwarded to the Commissioner a sworn report of the breathalyzer operator specifying, inter alia, that Kobilansky was driving with a blood alcohol concentration over 0.10 percent. The Commissioner notified Kobilansky that his driver's license was to be suspended pursuant to North Dakota Century Code Sec. 39-20-04.1 and Kobilansky requested and received a hearing.

Pursuant to NDCC Sec. 39-20-04.1 Kobilansky's driver's license could be suspended for ninety days or for one year, if he had violated NDCC Sec. 39-08-01 within five years, provided the Commissioner's hearing determined, inter alia, that the test to establish Kobilansky's blood alcohol concentration was properly administered and that it was 0.10 percent or greater.

The notice of hearing received by Kobilansky also contained a separate notice, with attached documents, stating:

"Attached are copies of certified copies of the Breathalyzer Operational Check List (Form 106) and the three test records relating to issues to be determined at the hearing scheduled in this matter. These documents will be submitted as evidence of facts to be determined at the hearing. No witness has been scheduled to testify on any matters contained in or pertaining to these documents."

At the hearing the breathalyzer operational check list and test records were offered as evidence. The check list identifies the various steps taken in administering a breathalyzer test and the test records show the test and actual results of the breathalyzer examination. Both documents were certified records of the Bismarck Police Department. The operator who gave Kobilansky the breathalyzer test and filled out the check list and test results was not present at the hearing and had not been subpoenaed by Kobilansky. The check list and test results were admitted into evidence over Kobilansky's objection that no foundation as to the operation of the breathalyzer test was established and no confrontation of the breathalyzer operator was had, and that the documents constituted hearsay evidence.

The Commissioner's hearing officer concluded Kobilansky was given a proper breathalyzer test and his blood alcohol concentration was above 0.10 percent. Kobilansky's driver's license was suspended for ninety days.

Kobilansky appealed the hearing officer's decision to the Burleigh County district court pursuant to NDCC Sec. 39-20-06. The district court held the admission of the check list and test results violated due process, reversed the hearing officer's decision, and ordered Kobilansky's driving privileges reinstated. The Commissioner appealed.

An appeal from a district court judgment involving the suspension of a driver's license pursuant to NDCC Ch. 39-20 is governed by the Administrative Agencies Practice Act, NDCC Ch. 28-32. Accordingly, we review the record compiled before the administrative agency and not the district court's findings. Dodds v. North Dakota State Highway Commissioner, 354 N.W.2d 165, 168 (N.D.1984). Furthermore, our role on review is limited by NDCC Sec. 28-32-19 to the determination of several statutorily defined questions.

Kobilansky argued he was denied procedural due process and a fair hearing because the check list and test results were admitted as evidence. Specifically, Kobilansky contended that these documents were inadmissible as hearsay evidence under Rule 802, North Dakota Rules of Evidence, and that the breathalyzer operator must be present at the administrative hearing to provide the foundation for the admission of the check list and test results. The Commissioner argued that these documents were admissible as exceptions to the hearsay rule under NDREv 803(8) as records and reports of a public office and therefore the presence of the breathalyzer operator was immaterial.

The Rules of Evidence per se do not control the admission of evidence before administrative agencies such as the State Highway Department. Rule 1101(d)(3), NDREv; Zimney v. North Dakota Crime Victims, Etc., 252 N.W.2d 8, 13 (N.D.1977); Reliance Insurance Company v. Public Service Commission, 250 N.W.2d 918, 920 (N.D.1977). Instead, administrative proceedings conducted by the Commissioner pursuant to NDCC Ch. 39-20, the implied consent statutes, are governed by the provisions of NDCC Ch. 28-32, Agnew v. Hjelle, 216 N.W.2d 291, 294 (N.D.1974), and NDCC Sec. 28-32-06 delineates what evidence is admissible in administrative hearings:

"The admissibility of evidence in any proceeding before an administrative agency shall be determined, insofar as circumstances will permit, in accordance with the practice in the district court. An administrative agency, or any person conducting an investigation or hearing for it, may waive the usual common-law or statutory rules of evidence if such waiver is necessary to ascertain the substantial rights of all the parties to the proceeding, but only evidence of probative value shall be accepted. All objections offered to evidence shall be noted in the record of the proceeding. No information or evidence except such as shall have been offered and made a part of the official record of the hearing shall be considered by the administrative agency, except as otherwise provided in this chapter."

Thus, the only specific limitation to the admission of evidence in administrative hearings is that it must be probative. Williams Electric Cooperative, Inc. v. Montana Dakota Utilities Co., 79 N.W.2d 508, 525 (N.D.1956). In addition, the rules governing admissibility must also grant procedural due process whenever deprivation of life, liberty, or property is or may be involved. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); U.S. Const.Amend. 14; N.D. Const. Art. I, Sec. 12.

A driver's license is a protectable property interest to which the guarantee of procedural due process applies. Illinois v. Batchelder, 463 U.S. 1112, 103 S.Ct. 3513, 3515, 77 L.Ed.2d 1267 (1983); Mackley v. Montrym, 443 U.S. 1, 12, 99 S.Ct. 2612, 2617, 61 L.Ed.2d 321 (1979); Dickson v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172 (1977); also see State v. Sinner, 207 N.W.2d 495 (N.D.1973).

This raised the following issues: (a) Did the rules governing the admission of evidence in the administrative hearing to suspend Kobilansky's driver's license violate his constitutional right to due process, (b) was the decision in accordance with law, and (c) did he receive a fair hearing? See NDCC Sec. 28-32-19(1), (2), and (4).

The minimal due process before an administrative board is not synonymous with the minimal requirements of due process in a court of law. First American Bank and Trust Company v. Ellwein, 221 N.W.2d 509, 517 (N.D.1974), cert. denied 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301, rehearing denied 419 U.S. 1117, 95 S.Ct. 798, 42 L.Ed.2d 816 (1975).

The strictness of the rules of evidence is not applicable to the unique characteristics of administrative hearings and their need generally for simple, informal, and direct adjudication. Opp Cotton Mills v. Administrator of W.H.D., Etc., 312 U.S. 126, 135, 61 S.Ct. 524, 537, 81 L.Ed. 624 (1941); see also Meadow Fresh Farms, Inc. v. Sandstrom, 333 N.W.2d 780, 784 (N.D.1983); 4 Mezines, Stein, Gruff, Administrative Law, Sec. 22.01, et seq. (1984).

Thus, while Kobilansky cannot demand the due process followed in courts, he was entitled to procedural fairness in his administrative hearing. The United States Supreme Court has stated that the question of what process is due in an administrative context should be resolved by consideration of the following three factors:

" 'first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.' " Mackey v. Montrym, 443 U.S. 1, 12, 99 S.Ct. 2612, 2617, 61 L.Ed.2d 321 (1979) quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

The initial step in the Mackey paradigm is identification of the nature and weight of the private interest affected by the official action challenged. Here, as in Mackey, the private interest involved is Kobilansky's license to drive a car. The loss of driving privileges is not insubstantial and may entail economic hardship and personal inconvenience. Furthermore, Kobilansky cannot be retroactively compensated or made whole if his suspension is later vacated. ² Cf. Buechler v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d 858 (N.D.1974) (retroactive payment of workmen's compensation benefits); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (welfare benefits); Mathews v. Eldridge, supra (social security payments). Thus, Kobilansky's private interests cannot be considered insignificant.

The second step outlined in...