State, Dept. of Motor Vehicles and Public Safety v. Root

• Decision Date: 28 August 1997
• Docket Number: No. 27708,27708
• Citation: 944 P.2d 784,113 Nev. 942
• Parties: THE STATE of Nevada, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, Appellant, v. Michael Allan ROOT, Respondent.
• Court: Nevada Supreme Court

Page 784

944 P.2d 784

113 Nev. 942

THE STATE of Nevada, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, Appellant, v. Michael Allan ROOT, Respondent.

No. 27708.

Supreme Court of Nevada.

Aug. 28, 1997.

Frankie Sue Del Papa, Attorney General, and Matthew T. Dushoff and Jon M. Okazaki, Deputy Attorneys General, Carson City, for Appellant.

John G. Watkins, Las Vegas, for Respondent.

OPINION

PER CURIAM:

On April 13, 1993, Las Vegas Metropolitan Police Department Officer Kai Degner ("Degner") stopped and detained respondent Michael Allan Root ("Root") for suspicion of driving under the influence of alcohol. Degner testified that he gave Root a three-part field sobriety test and then asked Root to submit to a preliminary breath test. Degner testified that he gave Root three attempts to blow into the breath device, but Root responded that he did not have enough air to do so. Root testified that he blew air into the device, but that no readings were registered. Degner then transported Root to the city detention center where he read Root the Nevada "implied consent warning." At the detention center, Root's driver's license was revoked. Root subsequently appealed the revocation to the Department of Motor Vehicles and Public Safety (DMV).

At the hearing, Root testified that, at the detention center, Degner asked him to consent to a blood test. Root testified that he told Degner that he had an extreme fear of needles and would therefore prefer to take a breath test. Root testified that Degner "cut him off" and said, "If you don't agree to a blood test, we're going to revoke your license for a year."

According to Degner, Root said:

[H]e was not going to refuse but he was not going to take a test. He said ... he already gave a breath test because he tried to take the preliminary breath test. I informed him that the preliminary breath test was not an evidentiary test and that he was still required by the DMV to take an evidentiary test consisting of blood or a breath test. He would not give me either, continuing to state that he already attempted to take one out in the field, the preliminary breath test.

Root testified that Degner then directed him to initial a "notice of revocation [of driving privileges]" form (DLD-45). Root then placed his initials in spaces next to five separate statements on the form. Those statements notified Root that he was required to submit to a breath or blood test, that his refusal to submit would result in the revocation of his driving privileges for one year, and that if he selected the breath test he would have to provide at least two samples. The form, which is signed by Degner, indicates that Root failed to submit to an evidentiary test.

Below the space for Root's name and address, and above the spaces for initialing, the words "I have" are handwritten on the form. Root, an attorney familiar with DUI matters contends that he was attempting to preserve a record on the form and explain that he was not refusing a breath test. Root testified that Degner prevented Root from completing his written comments.

In his findings of fact, conclusions of law, and decision issued on January 14, 1995, the DMV hearing officer determined (1) that Root had failed to submit to an evidentiary chemical sobriety test, and (2) that Root's testimony that he was not refusing to submit to a test was contradicted by his conduct which "spoke louder than words." The hearing officer affirmed the revocation of Root's driver's license.

Root appealed the hearing officer's decision to the district court. On August 22, 1994, the district court remanded the matter to the hearing officer to specifically address the statement "I have" written on the form, Root's testimony that he would have submitted to a breath test, and Degner's testimony that he did not remember seeing Root write "I have" on the notice form or remember ordering Root to cease writing.

On March 28, 1995, a second administrative hearing was held before the same hearing officer. Root reiterated his previous testimony. On cross-examination, Root stated that he had initialed the consent form and that Degner had warned Root that, by signing, he would lose his driving privileges. Degner indicated that he stopped Root from writing on the notice form because suspects are not permitted to write on the form, except to initial in the spaces provided.

In his second written decision, the hearing officer determined that the words "I have" represented a "non-issue ... or at least a non-crucial issue" which "had no legal significance." He found that even if Root had finished the sentence he had allegedly wanted to write, the result would not change. The hearing officer explained:

[Root] had already made his statement to the [police] officer that he was not taking any tests. Merely because [Root] wanted to begin preparing his defense for the hearing or trial that would follow, by writing exculpatory remarks on the DLD-45 form, does not alter the fact that he had already refused, and failed to submit to required testing.

The hearing officer again affirmed the withdrawal of Root's driving privileges. Root appealed this decision to the district court.

On September 18, 1995, the district court issued a decision and order reversing the hearing officer. The court rested its reversal on a determination that the hearing officer's finding that the words "I have" written on the form were "meaningless" and "of no legal significance" constituted an arbitrary and capricious action. The court also noted that the DLD-45 revocation form is one-sided because it does not provide a petitioner with a safeguard against the "word of the police" nor a space where a person could "express himself." The court stated that the lack of such safeguards may violate due process.

Appellant State Department of Motor Vehicles and Public Safety ("DMV") has timely appealed the district court's order.

DISCUSSION

Root contends that the Nevada statutory scheme relating to driving under the influence (DUI) matters violates due process because (1) inadequate procedural safeguards exist to protect drivers who do not submit to chemical sobriety tests from having their licenses unjustly revoked and (2) DUI suspects are not permitted to "preserve a written record" on license revocation forms.

The revocation of a driver's license implicates a protectable property interest entitling the license holder to due process. State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986). To determine the requirements of procedural due process,

a court must balance (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of that private interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Id. at 236-37, 720 P.2d at 1211-12 (citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976)). This court has explained that drivers have a substantial interest in retaining their driving privileges, but that the governmental interest in keeping its highways safe is also substantial and important. Vezeris, 102 Nev. at 237, 720 P.2d at 1212.

DUI suspects are given the opportunity to take chemical sobriety tests to determine their blood alcohol content. NRS 484.382-.385. Driving privileges are subject to summary revocation if suspects refuse to submit to required testing or if testing reveals intoxicants in the bloodstream in excess of legal limits. NRS 484.379-.386. Suspects may challenge this revocation in a hearing before the DMV. NRS 484.387. The determination of the DMV may be appealed to the district court. NRS 484.387(3). The district court's decision may be appealed to this court. NRS 233B.150. We conclude that the statutory protections provided to DUI suspects under Nevada law satisfy due process requirements. See generally Vezeris, 102 Nev. at 236-37, 720 P.2d at 1211-12. Allowing DUI suspects like Root to write upon driver's license revocation forms does not afford them substantial additional protection from erroneous deprivation.

Root was afforded an opportunity to relate his story to a quasi-judicial officer during a full hearing on the matter. The record shows that all other required procedures were followed. Accordingly, we conclude that Root's due process rights were not violated. ¹

The DMV contends that the hearing officer's decision is supported by substantial evidence and therefore that the district court erred by reversing that decision.

"This court's role in reviewing an...