Smith v. N.M. Taxation & Revenue Dep't

Decision Date16 May 2022
Docket NumberA-1-CA-39048
CourtCourt of Appeals of New Mexico
PartiesLEWIS SMITH, Appellant-Respondent, v. NEW MEXICO TAXATION & REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Appellee-Petitioner.

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY James W. Counts District Judge

Gary C. Mitchell, P.C. Gary C. Mitchell Ruidoso, NM for Respondent

Hector H. Balderas, Attorney General Richard Pener, Special Assistant Attorney General Santa Fe, NM for Petitioner

MEMORANDUM OPINION

MILES HANISEE, Chief Judge.

{¶1} In this appeal, we are asked to determine whether an administrative hearing officer (AHO) abused her discretion in applying 22.600.6.16 NMAC to rule that a driver has forfeited his right to a hearing under the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2019) (the Act) by failing to appear, or have his attorney appear at a scheduled and properly noticed hearing on the revocation of the driver's license. Following an order by the district court rescinding the revocation of Lewis Smith's driver's license, the Motor Vehicle Division (MVD) appeals, asserting that the district court wrongly applied 22.600.6.16 NMAC, improperly substituted its judgment for that of the AHO, and thereby erred in rescinding the license revocation. MVD contends that there is no conflict between 22.600.6.16 NMAC and the terms of the Act, and that 22.600.6.16 NMAC is consistent with administrative due process requirements. We agree that the district court abused its discretion in rescinding the revocation of Smith's license, and therefore, we reverse.

BACKGROUND

{¶2} Following his refusal to submit to a chemical test to determine his blood or breath alcohol content, Smith was issued a driving while intoxicated (DWI) citation and a notice of revocation on March 10, 2018. The notice of revocation informed Smith that pursuant to the Act, his license would be revoked in twenty days and that he may contest the revocation of his license by providing a written request for a hearing within ten days. Smith timely requested a hearing, which was initially scheduled as an in-person hearing at MVD's Alamogordo field office for April 26 2018, at 1:00 p.m. A letter informing him of the date, time and location of the hearing was sent to Smith and dated April 3, 2018. A letter containing the same date, time, and location was sent to Smith's attorney on April 16, 2018, which was received and signed for by the attorney's office on April 19, 2018. That same day, Smith's attorney filed a motion and proposed order to appear at Smith's hearing telephonically. The AHO granted the motion and provided Smith's attorney notice of the hearing by email as well as fax. The notice stated that the hearing would be conducted telephonically on April 26, 2018, at 1:00 p.m. A subpoena to appear telephonically was also faxed to the law enforcement officer who issued Smith the DWI citation and notice of revocation.

{¶3} On April 26, 2018, at 1:00 p.m. the AHO called into the conference call system. Neither Smith and his attorney, nor the law enforcement officer appeared.[1]Following a ten-minute grace period, the AHO entered a brief record and sustained the revocation of Smith's license. On May 8, 2018, Smith's attorney faxed a letter to the AHO alleging "confusion" as to the time of the hearing and explaining that "due to his obligation in federal court, [he] could not have made the 1:00 [p.m.] hearing." Smith's attorney additionally requested that the matter be reset for a telephonic conference hearing. In an order denying the motion to reconsider revocation, the AHO explained that the administrative hearing schedule "is fully booked and there is not adequate time to provide notice to the parties, subpoena the witnesses and conduct the rescheduled hearing within [ninety] days of the notice of the revocation" as required by 22.600.6.11 NMAC.

{¶4} Smith appealed the revocation of his driver's license to the district court. The district court determined that because the officer did not appear, MVD failed to sustain its burden of proof to sustain the revocation and that the AHO should have considered the circumstances of Smith's failure to appear at the hearing and ordered the revocation of his license to be rescinded. The MVD petitioned for certiorari to this Court, which we granted.

DISCUSSION

{¶5} MVD argues that the district court erred in determining that after a driver requests a hearing pursuant to 22.600.6.16 NMAC, a hearing officer must conduct an evidentiary hearing to sustain the revocation and in determining that the failure of the driver to appear at a scheduled hearing does not forfeit or waive the driver's right to a hearing. MVD also contends that the district court impermissibly substituted its opinion for that of the AHO by rejecting the AHO's finding that there was not sufficient time to reschedule and conduct an implied consent hearing given the AHO's "schedule [was] fully booked" between the May 8 letter from the attorney and the June 8 expiration of the AHO's authority to consider the revocation. Smith answers that once a driver provides a written request for a hearing on the revocation, "evidence by a preponderance from witnesses must be submitted to sustain the revocation of the license."

Standard of Review

{¶6} We review the district court's order for an abuse of discretion. Dixon v. N.M. Tax'n & Revenue Dep't, 2004-NMCA-044, ¶ 11, 135 N.M. 431, 89 P.3d 680. "We conduct the same review of an administrative order as the district court sitting in its appellate capacity, while at the same time determining whether the district court erred in the first appeal." Gallup Westside Dev., LLC v. City of Gallup 2004-NMCA-010, ¶ 10, 135 N.M. 30, 84 P.3d 78 (internal quotation marks and citation omitted). "[E]ven when we review for an abuse of discretion, our review of the application of the law to the facts is conducted de novo. Accordingly, we may characterize as an abuse of discretion a discretionary decision that is premised on a misapprehension of the law." Harrison v. Bd. of Regents of Univ. of N.M., 2013-NMCA-105, ¶ 14, 311 P.3d 1236 (internal quotation marks and citations omitted).

I. The District Court Abused Its Discretion in Rescinding the Revocation of Smith's Driver's License

{¶7} In rescinding the revocation of Smith's driver's license, the district court explained that "it was an abuse of discretion for the [AHO] to sustain the revocation without receiving evidence sufficient for her to find, by a preponderance of the evidence, the elements set forth in paragraphs (1) through (4) of Subsection F of . . . Section 66-8-112." We disagree.

{¶8} As the district court correctly concluded, "[t]he determination made by the [AHO] to sustain the revocation was not based upon the merits of the case, but rather upon the fact that [Smith] forfeited his right to a hearing." The record clearly demonstrates that Smith and his attorney received notice of the date, time, and place of the hearing. Smith, and his attorney, simply failed to appear at the "scheduled time and place . . . of the hearing." 22.600.6.16 NMAC. Because 22.600.6.16 NMAC authorizes the AHO to sustain the revocation of Smith's driver's license once he and/or his attorney failed to appear and consequently forfeited Smith's right to a hearing, her decision to sustain the revocation of his license does not constitute an abuse of discretion.

{¶9} Regulation 22.600.6.13 of the New Mexico Administrative Code also delegates to a hearing officer "the duty to conduct fair and impartial hearings" and "to take all necessary action to avoid delay in the proceedings," including the duty to schedule, continue, and reschedule hearings. Despite the AHO's express authority to control her schedule, the district court failed to consider that neither Smith nor his attorney successfully moved for a continuance. Pursuant to 22.600.6.11 NMAC, an AHO may "for good cause continue the hearing." Requests for continuances must be (1) "in writing," (2) "made at least three working days prior to the scheduled hearing," and (3) for "good cause" shown. 22.600.6.11 NMAC. Additionally, an AHO may grant a continuance that is not made in writing at least three working days prior to the scheduled hearing if the moving party demonstrates "extraordinary circumstances that the requesting party could not have known earlier." 22.600.6.11 NMAC.

{¶10} Here, neither Smith nor his attorney moved for a continuance prior to the hearing. Smith's attorney did not request a continuance in writing at least three days prior to the hearing despite the fact that his own letter to the AHO concedes that "due to his obligation in federal court [he] could not have made the 1:00 [p.m] hearing in any event." Following Smith's attorney's request to appear telephonically, he received both an email and a paper notice stating that the hearing was to be held telephonically on April 26, 2018, at 1:00 p.m. Smith's attorney received both copies of the notice days before the time lapsed in which he could have requested a continuance. Although Smith's attorney asked the AHO to reschedule the hearing, our review of the record does not demonstrate that the AHO erred in denying this request based on the lack of an opening in her schedule within the short deadline set by the Legislature. We see no "extraordinary circumstances that the requesting party could not have known earlier," 22.600.6.11 NMAC, and neither Smith nor his attorney assert that such...

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