Sabinash v. Director of Dept. of Transp.

• Decision Date: 02 December 1993
• Docket Number: No. 930179,930179
• Citation: 509 N.W.2d 61
• Parties: Mark A. SABINASH, Petitioner and Appellee, v. DIRECTOR OF THE DEPARTMENT OF TRANSPORTATION, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 61

509 N.W.2d 61

Mark A. SABINASH, Petitioner and Appellee, v. DIRECTOR OF THE DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

Civ. No. 930179.

Supreme Court of North Dakota.

Dec. 2, 1993.

Randall L. Hoffman (argued), of Paulson & Merrick, Jamestown, for petitioner and appellee.

Douglas B. Anderson (argued), Asst. Atty. Gen., Attorney General's Office, Bismarck, for respondent and appellant.

NEUMANN, Justice.

The Director of the Department of Transportation appeals from a district court judgment reversing the Director's decision to suspend Mark A. Sabinash's driving privileges for 91 days. We reverse the judgment and reinstate the Director's decision.

Jamestown Police Officer Thomas Nagel arrested Sabinash on January 17, 1993, for being in actual physical control of a vehicle while under the influence of alcohol. On February 1, 1993, after blood test results showed a blood alcohol concentration of .17 percent, Jamestown Police Sergeant Bruce Judd gave Sabinash a form entitled "Report and Notice Under Chapter 39-20 NDCC." In addition to a notice of hearing provision, Sabinash's form contained the following provisions relating to a temporary operator's permit:

"TEMPORARY OPERATOR'S PERMIT: (To be issued to driver whether marked valid or not valid.) ND License/Permit attached? X Yes No

"This permit is:

"---- Valid as a Temporary Operator's Permit for 25 days from date issued (unless terminated earlier by hearing officer).

"---- Not valid as a Temporary Operator's Permit because: ---- Non-Licensed Driver ---- License Suspended/Revoked ---- Previous permit (NDCC 39-20)

"THIS PERMIT IS VOID UNLESS ACCOMPANIED BY THE NUMBERED CITATION SHOWN ABOVE.

"I certify that I personally issued this Temporary Operator's Permit to the driver at 8:57 o'clock p.m., on 02-01 1993, at Stutsman Co. L.E.C. (location)

/s/ Sgt. Bruce C. Judd 213

Signature of Officer/Badge or I.D.

No."

Although Sabinash was entitled to a "valid" temporary operator's permit, Judd mistakenly failed to check either the box indicating that Sabinash's temporary operator's permit was "valid" or the box indicating it was "not valid."

Sabinash requested an administrative hearing on the suspension of his driving privileges. A notice of administrative hearing was mailed to Sabinash on February 5, 1993. This notice indicated that the date of issuance of his temporary operator's permit was February 1, 1993.

At the administrative hearing, the hearing officer received in evidence, over Sabinash's objection, the "Report and Notice" form. Sabinash argued that he had not received a valid temporary operator's permit as required by NDCC Sec. 39-20-03.1(1) and, as a result, the Director had no jurisdiction to conduct the administrative hearing. The hearing officer found that the arresting officer had reasonable grounds to believe Sabinash was in actual physical control, that Sabinash was arrested and tested in accordance with the law, and that Sabinash had a blood alcohol concentration of at least .10 percent by weight. The hearing officer also determined that Sabinash's driving privileges were not improperly suspended prior to the hearing and that "[t]he temporary operator's permit issued, even though not marked valid or invalid, is sufficient in this instance." The hearing officer suspended Sabinash's driving privileges for 91 days. Sabinash appealed to the district court.

The district court reversed the hearing officer's decision. The court determined that Sabinash's "due process rights were violated by the failure to follow the statutory requirement that he be given a temporary operator's permit...." The court concluded:

"Because of the importance of due process rights in our society, and the legislature's determination of the balance between the public's right to protection from intoxicated drivers and the individual driver's due process rights, the Department's failure to follow the statutory requirement and grant [Sabinash] a temporary operator's permit deprives the Department of jurisdiction."

The Director appealed.

We must affirm the Director's decision: (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. Dittus v. North Dakota Dept. of Transportation, 502 N.W.2d 100, 103 (N.D.1993); NDCC Sec. 28-32-19.

It is well settled that a driver's license is a protectable property interest that may not be suspended or revoked without due process. Powell v. Hjelle, 408 N.W.2d 737, 738 (N.D.1987); Mackey v. Montrym, 443 U.S. 1, 12 n. 7, 99 S.Ct. 2612, 2617 n. 7, 61 L.Ed.2d 321 (1979). Procedural due process requires notice and a meaningful opportunity for a hearing appropriate to the nature of the case. Powell.

Section 39-20-03.1(1), NDCC, is the legislative mandate intended to protect a driver's due process rights between the time of an arrest for an alcohol related offense and the driver's opportunity for a hearing on a proposed revocation or suspension of driving privileges. The statute directs that, if a person submits to a test and the test shows an alcohol concentration of at least .10 percent by weight,

"The law enforcement officer shall immediately take possession of the person's operator's license if it is then available and shall immediately issue to that person a temporary operator's permit if the person then has valid operating privileges, extending driving privileges for the next twenty-five days, or until earlier terminated by the decision of a hearing officer under section 39-20-05. The law enforcement officer shall sign and note the date on the temporary operator's permit. The temporary operator's permit serves as the director's official notification to the person of the director's intent to revoke, suspend, or deny driving privileges in this state."

NDCC Sec. 39-20-03.1(1).

Sabinash weaves an interesting argument. He claims that in order to legally drive in...