Peterson v. North Dakota Dept. of Transp.

• Decision Date: 28 June 1994
• Docket Number: 930407 and 940031,Nos. 930366,s. 930366
• Parties: In the Matter of the Suspension of the Driving Privileges of Travis Scott Peterson. Travis Scott PETERSON, Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee. In the Matter of the Suspension of the Driving Privileges of Bradley Michael Jacobson. Bradley Michael JACOBSON, Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee. In the Matter of the Suspension of the Driving Privileges of Tamara Jean Johnson. Tamara Jean JOHNSON, Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 690

518 N.W.2d 690

In the Matter of the Suspension of the Driving Privileges of

Travis Scott Peterson.

Travis Scott PETERSON, Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

In the Matter of the Suspension of the Driving Privileges of

Bradley Michael Jacobson.

Bradley Michael JACOBSON, Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

In the Matter of the Suspension of the Driving Privileges of

Tamara Jean Johnson.

Tamara Jean JOHNSON, Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

Civ. Nos. 930366, 930407 and 940031.

Supreme Court of North Dakota.

June 28, 1994.

Mark R. Fraase, of Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, for appellants.

Jean R. Mullen, Asst. Atty. Gen., Attorney General's Office, Bismarck, for appellee.

VANDEWALLE, Chief Justice.

Travis Peterson, Bradley Jacobson, and Tamara Johnson appeal from district court judgments affirming orders suspending their driving privileges. We reverse and remand.

Peterson and Jacobson's driver's licenses were suspended pursuant to Section 39-06-40(1) and (7), N.D.C.C., which authorizes the Director ¹ of the Department of Transportation [DOT] to revoke a driver's license for up to six months if the person displays or has in his possession an altered driver's license. The altered licenses and unauthenticated copies of a "LAW ENFORCEMENT INITIAL COMPLAINT REPORT" and a supplemental police report from Moorhead, Minnesota, were the only evidence offered at the administrative hearing to support those charges. These documents show that Peterson and Jacobson allegedly attempted to enter a bar in Minnesota using their altered North Dakota driver's licenses.

Johnson's driver's license was suspended pursuant to Section 39-06-40(3) and (7), N.D.C.C., for displaying another person's driver's license. Unauthenticated copies of a "LAW ENFORCEMENT INITIAL COMPLAINT REPORT" and a supplemental police report from Moorhead, Minnesota, were the only evidence offered at the administrative hearing to support the charge. These documents show that Johnson allegedly attempted to enter a Minnesota bar using another person's driver's license.

The complaint reports admitted in this case are forms, filled out primarily on a typewriter. The arresting officer, who presumably filled out the forms, did not sign them, although a supervisor did initial them. There is no seal indicating that they are official documents; in fact, there is no indication anywhere on the complaint reports that they are from the Moorhead police department. The separate "supplements" to the complaint reports are also not signed by anyone, and bear no seal, certification, or letterhead of any Minnesota law enforcement or licensing agency. The envelopes in which the documents were forwarded are not in the record, so no return address is available. The notices the licensees received indicated only that the documents were received "from Minnesota." Counsel for DOT candidly admitted at oral argument that she does not know where the documents came from, although she speculated that they were sent by either the Moorhead police department or the Minnesota driver's licensing agency.

At their respective administrative hearings, Peterson, Jacobson, and Johnson objected to admission of the unauthenticated copies of the complaints and supplemental police reports. In each case the hearing officer admitted the documents and ordered suspension of driving privileges for sixty days. The district court affirmed the suspensions, and Peterson, Jacobson, and Johnson then appealed to this court. The cases have been consolidated on appeal.

An appeal from a district court judgment involving a license suspension is governed by Chapter 28-32, N.D.C.C., the Administrative Agencies Practice Act. Holler v. North Dakota Department of Transportation Director, 470 N.W.2d 616 (N.D.1991). We review the decision of the agency, not that of the district court, and examine the record compiled before the agency, not the findings of the district court. Maher v. North Dakota Department of Transportation, 510 N.W.2d 601 (N.D.1994). Our review is essentially limited to: (1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law? Bryl v. Backes, 477 N.W.2d 809 (N.D.1991).

DOT seeks to suspend these drivers' licenses based upon Section 39-06-40(7), N.D.C.C., which provides that "[t]he commissioner upon receiving a record of conviction or other satisfactory evidence of the violation of this section shall immediately revoke the person's operator's license, driving privileges, permit, or non-driver photo identification card." DOT concedes that there is no record evidence that these licensees were convicted of any of the offenses enumerated in Section 39-06-40, N.D.C.C., ² but argues that there was "other satisfactory evidence" of violations to support suspension of their driver's licenses. DOT asserts that the unauthenticated, unsigned, and uncertified copies of the Minnesota police reports constitute sufficient "other satisfactory evidence."

DOT concedes that, under the 1991 amendments to Section 28-32-06(1), N.D.C.C., ³ the North Dakota Rules of Evidence govern these license suspension proceedings. DOT argues that the Minnesota police reports, although admittedly hearsay, are admissible under Rule 803(8)(iii), N.D.R.Evid.:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * * * * * "(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (iii) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."

The proponent of hearsay evidence bears the burden of establishing that the statement qualifies under one of the recognized exceptions in Rules 803 and 804, N.D.R.Evid. Staiger v. Gaarder, 258 N.W.2d 641 (N.D.1977). When a written statement is offered that contains hearsay, part of the factual foundation required is authentication. We discussed authentication of documents in the context of a driver's license suspension in Frost v. North Dakota Department of Transportation, 487 N.W.2d 6, 8 (N.D.1992):

"Generally, before documentary evidence is admissible it must be authenticated. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 386 (N.D.1986). Authentication is simply identification. Black's Law Dictionary, p. 671 (5th ed. 1978). Identification 'as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.' NDREv 901(a)."

DOT argues that the copies of the Minnesota police records were self-authenticating pursuant to Section 39-06-33(2), N.D.C.C., which provides in pertinent part:

"Any hearing conducted under this section and any appeal from the decision of the hearing must be conducted under rules adopted by the director.... At the hearing, the regularly kept records of the director may be introduced and are prima facie evidence of their content without further foundation."

The copies of the Minnesota police reports were certified by the custodian of the records in North Dakota as true and correct copies of the documents on file with the North Dakota Driver's License and Traffic Safety Division. The relevant question is whether these copies of Minnesota police records constitute "regularly kept records of the director." DOT's position is apparently that any document placed in a driver's file becomes a "regularly kept record."

The phrase "regularly kept records of the director" is not statutorily defined. Although it is not our intent to limit the records encompassed therein to those specifically delineated by statute [cf. City of Grand Forks v. Grand Forks Herald, Inc., 307 N.W.2d 572 (N.D.1981) (term "public records" open to inspection under Section 44-04-18, N.D.C.C., is to be given an expansive meaning, and is not limited to those records required by law to be kept) ], we note that several statutes do provide examples of documents that are specifically included within the statutory designation. In four separate statutes governing use of chemical test results to determine intoxication, copies of certified copies of various documents are declared to be "regularly kept records of the director." See Section 39-20-05(4), N.D.C.C. (test for intoxication of drivers); Section 39-06.2-10.6(4), N.D.C.C. (test for intoxication of drivers of commercial vehicles); Section 20.1-15-08(5) (test for intoxication of hunters); Section 20.1-13.1-08(4), N.D.C.C. (test for intoxication of boat operators). Section 39-20-05(4), N.D.C.C., is illustrative:

"At a hearing under this section, the regularly kept records of the director may be introduced. Those records establish prima facie their contents without further foundation. For purposes of this chapter, any copy of a certified copy of an analytical report of a blood, urine, or saliva sample received by the director from the state toxicologist or a law enforcement officer, a certified copy of the checklist and test records received by the director from a certified breath test operator, and any copy of a certified copy of a certificate of the state toxicologist relating to approved methods, devices, operators, materials, and checklists used for testing for alcohol concentration received by the director from the state toxicologist or the clerk of district court, are regularly kept records of the director."

See also Frost, supra (documents certified by the records custodian of the Bismarck Police Department and forwarded to the director are "regularly kept...