May v. Sprynczynatyk, 20040232.

• Decision Date: 11 April 2005
• Docket Number: No. 20040232.,20040232.
• Citation: 695 N.W.2d 196,2005 ND 76
• Parties: Daryl Jerome MAY, Petitioner and Appellant v. David A. SPRYNCZYNATYK, Director, Department of Transportation, Respondent and Appellee.
• Court: North Dakota Supreme Court

695 N.W.2d 196

2005 ND 76

Daryl Jerome MAY, Petitioner and Appellant v. David A. SPRYNCZYNATYK, Director, Department of Transportation, Respondent and Appellee.

No. 20040232.

Supreme Court of North Dakota.

April 11, 2005.

Mark A. Friese (argued), and Bruce D. Quick (on brief), Vogel Law Firm, Fargo, ND, for petitioner and appellant.

Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for respondent and appellee.

MARING, Justice.

[¶ 1] Daryl May has appealed from a district court judgment affirming a hearing officer's decision to suspend May's driver's license for two years. We affirm, concluding that the failure of the Department of Transportation ("the Department") to file a transcript of the administrative hearing within twenty days did not require summary reversal of the hearing officer's decision and that May failed to raise a proper objection to admission of the Intoxilyzer test results.

I

[¶ 2] In the early morning hours of March 6, 2004, a Fargo police officer noticed May's vehicle being driven in an erratic manner. Upon stopping the vehicle, the officer noticed that May's eyes were watery and there was a strong odor of alcoholic beverages. May failed field sobriety tests and was arrested for driving under the influence. He was taken to the Cass County Jail, where an Intoxilyzer test showed a blood alcohol concentration of .19 percent.

[¶ 3] May requested an administrative hearing, which was held on March 31, 2004. The hearing officer determined the stop of May's vehicle was justified and the Intoxilyzer test had been fairly administered in accordance with the State Toxicologist's approved method. The hearing officer ordered that May's license be suspended for two years. May appealed to the district court, which affirmed the decision of the hearing officer.

II

[¶ 4] Judicial review of a decision to suspend a driver's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Larsen v. North Dakota Dep't of Transp., 2005 ND 51, ¶ 4, 693 N.W.2d 39; Kiecker v. North Dakota Dep't of Transp., 2005 ND 23, ¶ 7, 691 N.W.2d 266. Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On an appeal from a district court's ruling on an administrative appeal, this Court reviews the agency order in the same manner. N.D.C.C. § 28-32-49; Larsen, at ¶ 4; Ringsaker v. Workforce Safety & Ins. Fund, 2005 ND 44, ¶ 9, 693 N.W.2d 14.

[¶ 5] This Court exercises a limited review in appeals involving driver's license suspensions and revocations. Aamodt v. North Dakota Dep't of Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308; Wetsch v. North Dakota Dep't of Transp., 2004 ND 93, ¶ 10, 679 N.W.2d 282. We review the decision of the administrative agency, not the decision of the district court, and our review is limited to the record compiled before the agency. Kiecker, 2005 ND 23, ¶ 8, 691 N.W.2d 266; Wetsch, at ¶ 9. In reviewing an administrative agency's factual findings, we do not substitute our judgment for that of the agency or make independent findings of fact, but defer to the hearing officer's opportunity to judge the credibility of the witnesses. Kiecker, at ¶ 8; Aamodt, at ¶ 12. We determine only whether a reasoning mind reasonably could have determined that the factual findings were proved by the weight of the evidence from the entire record. Kiecker, at ¶ 8; Aamodt, at ¶ 12. Questions of law are fully reviewable on appeal. Kiecker, at ¶ 8.

III

[¶ 6] May contends that summary reversal of his license suspension is mandated because the Department failed to file a transcript of the administrative proceedings within twenty days of receipt of his notice of appeal.

[¶ 7] Section 39-20-06, N.D.C.C., governs judicial review of a decision to suspend, revoke, or deny a driver's license, and requires the driver to serve and file a notice of appeal and specifications of error within seven days after the date of the hearing. The statute further provides:

Within twenty days after receipt of the notice of appeal, the director or the hearing officer who rendered the decision shall file in the office of the clerk of court to which the appeal is taken a certified transcript of the testimony and all other proceedings.

[¶ 8] May's administrative hearing was held on March 31, 2004. May's notice of appeal and specifications of error were mailed to the Department on April 5, 2004, and filed with the district court on April 6, 2004. The Department mailed the transcript of the administrative hearing on April 29, 2004, and it was filed in the office of the clerk of district court on April 30, 2004. May argues that, even allowing three days for service by mail under N.D.R.Civ.P. 6(e)(1), the Department was required to file the transcript with the district court by April 28, 2004. The Department does not dispute that the transcript was filed a few days late.

A

[¶ 9] May contends that the Department's failure to strictly comply with the requirements of N.D.C.C. § 39-20-06 automatically mandates summary reversal of the decision suspending his license. The Department argues that timely filing of the transcript is not jurisdictional, and reversal is appropriate only if May shows he was prejudiced by the filing of the transcript a few days late. Resolution of this issue requires consideration of this Court's decisions in Rudolph v. North Dakota Dep't of Transp. Dir., 539 N.W.2d 63 (N.D.1995), and Dettler v. Sprynczynatyk, 2004 ND 54, 676 N.W.2d 799.

[¶ 10] In Rudolph, the Department filed the transcript within twenty days as required by N.D.C.C. § 39-20-06. Nearly two months later the parties discovered that four pages had been omitted from the transcript. The Department supplemented the transcript with the omitted pages, and the district court granted Rudolph's motion for a fifteen-day extension to the briefing schedule to allow him to address the new material.

[¶ 11] On appeal to this Court, Rudolph argued the untimely filing of the complete transcript was jurisdictional and mandated reversal of the decision suspending his license. The Department argued the twenty-day requirement is not jurisdictional and Rudolph had "suffered no prejudice from the slight delay caused by the `clerical' error." Rudolph, 539 N.W.2d at 66. This Court agreed with the Department, concluding that the twenty-day requirement was not jurisdictional and that the appropriate remedy for a failure to file a complete transcript of the administrative hearing is a remand until the transcript is provided, not dismissal of the action. Id. at 67.

[¶ 12] In Dettler, this Court addressed a driver's failure to serve and file sufficiently particular specifications of error as required by N.D.C.C. § 39-20-06. Dettler had timely filed specifications of error, but the Department argued the specifications were not particular enough to identify the unlawful seizure and procedural issues Dettler attempted to raise on appeal. We concluded that Dettler's specifications of error were not particular enough to adequately preserve those issues for appeal, making it unnecessary to address those issues on the merits. Dettler, 2004 ND 54, ¶¶ 17, 21, 676 N.W.2d 799.

[¶ 13] May argues that Dettler requires strict compliance with all provisions of N.D.C.C. § 39-20-06, and failure of the Department to comply with any of the statute's requirements automatically mandates summary reversal of the decision suspending his license. He further argues that the holding in Rudolph is inapplicable because this Court's subsequent decision in Dettler now requires strict compliance with all provisions of N.D.C.C. § 39-20-06, including the requirement that the Department file the transcript of the hearing within twenty days.

[¶ 14] May has misread our holding in Dettler. We did not say that summary reversal was required if a party failed to strictly comply with all of the requirements in N.D.C.C. § 39-20-06. In Dettler we held only that we would decline to address on appeal issues and arguments which had not been adequately identified in the specifications of error. The result in Dettler is analogous to the rule that issues which have not been adequately preserved below will be considered waived and will not be addressed on appeal. See, e.g., State v. Lee, 2004 ND 176, ¶¶ 9-10, 687 N.W.2d 237

; State v. Causer, 2004 ND 75, ¶ 16, 678 N.W.2d 552. May's suggestion that Dettler requires summary reversal for failure to strictly comply with N.D.C.C. § 39-20-06 is also inconsistent with the fact that we went on in Dettler to address other issues which had been adequately identified in the specifications of error. See Dettler, 2004 ND 54, ¶¶ 22-24,

676 N.W.2d 799.

[¶ 15] We conclude that Dettler does not require automatic summary dismissal of a decision suspending a driver's license when the Department fails to file the transcript within the twenty-day period. Under Rudolph, the twenty-day filing period is not jurisdictional. Because May has failed to allege or prove prejudice caused by the two-day delay in filing the transcript, we conclude the Department's failure to...