Sayler v. North Dakota Dept. of Transp.

• Decision Date: 16 October 2007
• Docket Number: No. 20070101.,20070101.
• Parties: Kylan Dennis SAYLER, Plaintiff and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.
• Court: North Dakota Supreme Court

740 N.W.2d 94

2007 ND 165

Kylan Dennis SAYLER, Plaintiff and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.

No. 20070101.

Supreme Court of North Dakota.

October 16, 2007.

Michael Ray Hoffman, Bismarck, N.D., for plaintiff and appellant.

Andrew Moraghan, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Kylan Sayler appealed from a district court judgment affirming an administrative hearing officer's decision to suspend Sayler's driver's license for two years. We affirm, concluding the Department of Transportation ("Department") filed the administrative hearing transcript with the district court within 20 days of receiving Sayler's notice of appeal and the police officer properly seized and arrested Sayler for driving under the influence.

I

[¶ 2] On July 14, 2006, Bismarck police officer Scott Betz was on patrol when he received a dispatch to investigate a citizen's tip regarding a possible drunk driver in a vehicle that was being driven erratically swerving into lanes of on-coming traffic. The citizen had used a cell phone to call the Bismarck police department, which transferred the call to a 911 operator. In addition to describing the erratic driving, the citizen described the suspect's vehicle and license plate number, and she followed the vehicle until she observed it pull into a driveway. The citizen also observed two police cars arrive at the location and saw the police talking to the driver of the car.

[¶ 3] Officer Betz testified that at the time of the dispatch, he was two seconds away from the street where the suspect vehicle was reportedly located. Officer Betz testified he observed a vehicle just pull into a driveway and no other traffic on the street. Officer Betz also testified he saw a man getting out of the car as he pulled up in his patrol car. Officer Betz testified the vehicle had the same plate numbers dispatch had given out. According to Officer Betz, he then got out of his patrol car and said "Hi" to the man who was then standing in his yard, and the man, later identified as Sayler, responded, "Hi." Officer Betz testified he then asked Sayler if he could speak with him and Sayler responded that he could. Officer Betz testified that during the conversation, Sayler admitted he had just pulled into his driveway and had been drinking that night. Officer Betz described Sayler's eyes as bloodshot and glossy.

[¶ 4] Officer Betz testified Sayler then agreed to take the "horizontal gaze nystagmus" test, which he failed, and Sayler had difficulty following instructions for the "walk and turn" test. Officer Betz testified that at this point, Sayler stated, "I'm drunk." Sayler was arrested for driving under the influence and transported to the police department where Sayler failed an Intoxilyzer test with a .24 percent blood alcohol concentration.

[¶ 5] Officer Betz issued Sayler a Report and Notice form, including a temporary operator's permit. Sayler requested an administrative hearing before the Department. After an August 2006 hearing, an administrative hearing officer issued findings of fact, conclusions of law, and an order suspending Sayler's driving privileges for two years. The district court affirmed the suspension.

II

[¶ 6] This Court's 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. Gabel v. North Dakota Dep't of Transp., 2006 ND 178, ¶ 7, 720 N.W.2d 433. We review the record before the administrative agency and will affirm an agency's decision unless:

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.

N.D.C.C. § 28-32-46.

[¶ 7] On appeal, this Court "review[s] an appeal from the determination of an administrative agency based only on the record filed with the court." N.D.C.C. § 28-32-46. This Court does "not make independent findings of fact or substitute our judgment for that of the agency" when reviewing an administrative agency's factual findings. Kiecker v. North Dakota Dep't of Transp., 2005 ND 23, ¶ 8, 691 N.W.2d 266 (citation omitted). We determine only whether a reasoning mind reasonably could have determined the factual conclusions reached were proved by the weight of the evidence from the entire record. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). As such, we give deference to the Department's sound findings, but we will review questions of law de novo. Gabel, 2006 ND 178, ¶ 8, 720 N.W.2d 433; see also Huff v. North Dakota State Bd. of Med. Exam'rs, 2004 ND 225, ¶ 8, 690 N.W.2d 221 ("An agency's decisions on questions of law are fully reviewable.").

III

[¶ 8] Sayler argues the Department's violation of N.D.C.C. § 39-20-06, by failing to file the administrative hearing transcript within 20 days of receiving Sayler's notice of appeal, requires reversal of his license suspension.

[¶ 9] Section 39-20-06, N.D.C.C., states, in relevant part (emphasis added):

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.

This Court has explained the 20-day filing period is not jurisdictional, and a violation does not require automatic summary dismissal of a license suspension decision. See May v. Sprynczynatyk, 2005 ND 76, ¶ 15, 695 N.W.2d 196; Rudolph v. North Dakota Dep't of Transp. Dir., 539 N.W.2d 63, 66 (N.D.1995). In May, at ¶ 15, this Court concluded reversal of a license suspension was not mandated where the Department had filed the transcript two days late because May had failed to allege or prove prejudice. The record in that case also did not establish "a persistent pattern of improper conduct by the Department, but merely a single violation." Id. at ¶ 18.

[¶ 10] In this case, the hearing officer's decision suspending Sayler's license for two years was issued on August 3, 2006. Sayler's notice of appeal and specifications of error to the district court indicates the notice was mailed to the Department's legal division on August 7, 2006. This notice of appeal was filed with the district court on August 8, 2006. The record indicates the transcript of the administrative hearing, however, was not filed in the district court until October 27, 2006.

[¶ 11] In the district court, Sayler argued his suspension should be reversed based upon the Department's failure to file the transcript within 20 days of receipt of the notice of appeal in violation of N.D.C.C. § 39-20-06. In response to Sayler's argument, the Department submitted an affidavit of a Department administrative assistant, stating the Department did not receive Sayler's notice by mail, but instead only received a copy of the notice by facsimile on October 11, 2006. The affidavit further states that after receiving the notice, the Department prepared the transcript in the same manner as all other transcripts and sent the transcript to both the district court and Sayler's counsel on October 26, 2006. The transcript was ultimately filed in the district court on October 27, 2006.

[¶ 12] In rejecting Sayler's argument, the district court concluded, in part, that Sayler failed to establish he had suffered prejudice as a result of the Department's delay in filing the transcript. On appeal to this Court, Sayler argues a two-month delay in filing the transcript supports a presumption of prejudice and typographical errors make the transcript unreliable. Our resolution of this issue, however, relies upon the plain language of N.D.C.C. § 39-20-06.

[¶ 13] Section 39-20-06, N.D.C.C., requires that the director or hearing officer who rendered the decision file a certified transcript "[w]ithin twenty days after receipt of the notice of appeal." The statute is thus clear that it is the Department's actual receipt of a notice of appeal which commences the 20-day period, rather than some other event such as service or filing the notice of appeal. The record here reflects the Department actually received the notice of appeal on October 11, 2006, and the administrative transcript was filed in the district court on October 27, 2006. Based upon these dates, we conclude the Department timely filed the transcript within the 20-day period after receipt of the notice of appeal.

[¶ 14] We are concerned, however, regarding the number of typographical errors cited by Sayler in the transcript. Both the district court and this Court on appeal rely upon the accuracy of the transcription of proceedings before the administrative hearing officer. Although we are concerned with the transcript's errors, none of the errors change the evidence relied upon by the hearing officer in this case. Furthermore, the record does not establish a systemic disregard of the law or persistent pattern of improper conduct by the Department. Cf. May, 2005 ND 76, ¶ 17, 695 N.W.2d 196; Madison v. North Dakota Dep't of Transp., 503 N.W.2d 243, 246-47 (N.D.1993).

[¶ 15] We therefore reject Sayler's claim that he is entitled to reversal of the decision suspending his license under N.D.C.C....