Schaaf v. North Dakota Dept. of Transp.

• Decision Date: 21 July 2009
• Docket Number: No. 20090025.,20090025.
• Citation: 771 N.W.2d 237,2009 ND 145
• Parties: Kyle SCHAAF, Petitioner and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
• Court: North Dakota Supreme Court

771 N.W.2d 237

2009 ND 145

Kyle SCHAAF, Petitioner and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

No. 20090025.

Supreme Court of North Dakota.

July 21, 2009.

Stanley J. Boehm, Boehm Law Office, Bismarck, N.D., for petitioner and appellee.

Michael Trent Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] The Department of Transportation appeals from a district court judgment reversing the Department's decision to suspend Kyle Schaaf's driving privileges for 91 days. We hold the district court erred in applying the ten-day period for notice of a hearing in N.D.C.C. § 28-32-21(1)(d) to the proceeding to suspend Schaaf's driving privileges. We reverse the judgment and remand for reinstatement of the Department's decision suspending Schaaf's driving privileges.

I

[¶ 2] On May 22, 2008, Mandan police received a report of minors drinking in a parking lot. A police officer approached the parking lot and observed Schaaf, a minor, exiting a motor vehicle in the lot. After a conversation with the officer, Schaaf consented to an S-D2 onsite screening test, which showed he had alcohol in his system. The officer arrested Schaaf for minor in consumption, and a search of the vehicle revealed two nearly empty beer cans. Schaaf was driven to the law enforcement center for a blood test, which was submitted to the state crime laboratory for analysis.

[¶ 3] The result of the blood test indicated Schaaf had a blood alcohol concentration of .03 percent, and on June 15, 2008, Mandan police issued Schaaf a report and notice of intent to suspend Schaaf's driving privileges, and a temporary operator's permit. The officer forwarded to the Department a certified written report, Schaaf's operator's license, and a certified copy of the operational checklist and the test results for the blood test. On June 18, 2008, Schaaf requested an administrative hearing on the suspension of his driving privileges, which was received by the Department on June 23, 2008. By notice dated June 30, 2008, and received by Schaaf on July 1, 2008, the Department notified Schaaf of an administrative hearing scheduled for July 7, 2008. Schaaf did not object to the notice of hearing until the end of the July 7 hearing, when he claimed he was not afforded ten days' notice before the hearing under N.D.C.C. § 28-32-21. A Department hearing officer suspended Schaaf's driving privileges for 91 days.

[¶ 4] The district court reversed the Department's decision, concluding the Department failed to provide Schaaf with a notice of hearing ten days before the administrative hearing under N.D.C.C. § 28-32-21(1)(d). The court said the statutory provision was basic and mandatory and the Department did not have jurisdiction to suspend Schaaf's driving privileges.

[¶ 5] Schaaf timely requested an administrative hearing under N.D.C.C. § 39-20-05. The issue here is whether the Department lacked jurisdiction to suspend Schaaf's license because the notice of hearing was served on Schaaf less than ten days before the hearing. Schaaf's notice of appeal from the Department's decision to the district court was timely under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 39-20-06. The Department filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] Judicial review of the Department's decision to suspend driving privileges is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Barros v. North Dakota Dep't of Transp., 2008 ND 132, ¶ 7, 751 N.W.2d 261. The district court, under N.D.C.C. § 28-32-46, and this Court, under N.D.C.C. § 28-32-49, must affirm the Department's order 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.

[¶ 7] In Kiecker v. North Dakota Dep't of Transp., 2005 ND 23, ¶ 8, 691 N.W.2d 266 (citations omitted), we discussed our standard of review of an administrative agency's decision:

On appeal, courts "must review an appeal from the determination of an administrative agency based only on the record filed with the court." When reviewing an administrative agency's factual findings, "we do not make independent findings of fact or substitute our judgment for that of the agency." We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. "An agency's decisions on questions of law are fully reviewable."

III

[¶ 8] The Department argues it had jurisdiction to suspend Schaaf's driving privileges, because the ten-day limitation in N.D.C.C. § 28-32-21(1)(d) does not apply to hearings for the suspension of driving privileges under N.D.C.C. ch. 39-20. The Department argues N.D.C.C. § 28-32-21(1)(a)-(h) applies to one type of adjudicative proceeding, a hearing on a complaint against a specific-named respondent, and N.D.C.C. § 28-32-21(3)(a)-(d) applies to adjudicative proceedings that do not involve a hearing on a complaint against a specific-named respondent. The Department essentially argues the provisions of N.D.C.C. § 28-32-21 are incompatible with the procedures and time frames for suspension of driving privileges under N.D.C.C. ch. 39-20. Schaaf responds that he received the notice of hearing on July 1, 2008, only six days before the scheduled hearing on July 7, 2008, and the notice was not timely under N.D.C.C. § 28-32-21(1)(d). He argues the provisions of N.D.C.C. ch. 28-32 were not complied with in this proceeding.

[¶ 9] This Court has recognized that the Department's authority to suspend driving privileges is governed by statute and that the Department must meet basic and mandatory statutory provisions to have authority to suspend driving privileges. See Brewer v. Ziegler, 2007 ND 207, ¶¶ 13-16, 743 N.W.2d 391 (report filed by officer with Department under N.D.C.C. § 39-20-03.1(3) included sufficient information to show officer's basis for finding probable cause to arrest driver; driver's assertion Department lacked jurisdiction to suspend license without merit); Whitecalfe v. North Dakota Dep't of Transp., 2007 ND 32, ¶¶ 9-13, 727 N.W.2d 779 (N.D.C.C. § 39-20-04 governs procedures for revoking driving privileges for refusing to submit to chemical testing; statute only requires driver receive temporary operator's permit and does not require officer's statement of probable cause be given to driver with temporary operator's permit); Jorgensen v. North Dakota Dep't of Transp., 2005 ND 80, ¶¶ 7-13, 695 N.W.2d 212 (result of chemical test was basic and mandatory and Department lacked authority to suspend driving privileges because officer failed to record the chemical test result on the copy of the report and notice sent to Department); Aamodt v. North Dakota Dep't of Transp., 2004 ND 134, ¶¶ 14-26, 682 N.W.2d 308 (statutory provision requiring arresting officer forward to the director a certified written report showing officer had reasonable grounds to believe person had been driving or was in actual physical control was mandatory; officer's failure to identify reasonable grounds in report to Department deprived Department of jurisdiction to suspend operator's license); Dworshak v. Moore, 1998 ND 172, ¶¶ 9-15, 583 N.W.2d 799 (officer's failure to immediately issue driver temporary operator's permit under N.D.C.C. § 39-20-04(1) is not jurisdictional and does not deprive Department of authority to revoke operator's driving privileges); Larson v. Moore, 1997 ND 227, ¶¶ 7-10, 571 N.W.2d 151 (officer's failure to submit first blood sample for testing to obtain analytical report as required by N.D.C.C. § 39-20-03.1(3) deprived Department of authority to suspend driver's license); Lamb v. Moore, 539 N.W.2d 862, 864 (N.D.1995) (requirement in N.D.C.C. § 39-20-03.1(3) that officer forward to director test records of a breath test for all tests administered at direction of officer did not require officer to forward blank test card used in unsuccessful attempt to clear machine after test); Wingerter v. North Dakota Dep't of Transp., 530 N.W.2d 362, 364-65 (N.D. 1995) (N.D.C.C. § 39-20-03.1(3) distinguishes between breath tests, and blood, urine, and saliva tests; for breath tests, statute requires officer to forward to director certified copy of operational checklist and test records, but for urine, saliva, and blood test, statute requires only certified copy of analytical report by state toxicologist); Samdahl v. North Dakota Dep't of Transp., 518 N.W.2d 714, 716-17 (N.D. 1994) (delay of more than one month in giving of notice of intent to suspend after receiving results of toxicology report under N.D.C.C. § 39-20-03.1 is not jurisdictional); Bosch v. Moore, 517 N.W.2d 412, 413 (N.D.1994) (statutory provision requiring officer to forward to Director results of all breath tests was basic and mandatory, and absence of those results in forwarded report deprived Department of authority to suspend operator's license); Erickson v. Director, North...