State v. Bettenhausen, Cr. N

• Decision Date: 09 August 1990
• Docket Number: Cr. N
• Citation: 460 N.W.2d 394
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Donald W. BETTENHAUSEN, Defendant and Appellee. o. 890375.
• Court: North Dakota Supreme Court

Page 394

460 N.W.2d 394

2 A.L.R.5th 1127

STATE of North Dakota, Plaintiff and Appellant, v. Donald W. BETTENHAUSEN, Defendant and Appellee.

Cr. No. 890375.

Supreme Court of North Dakota.

Aug. 9, 1990.

Terry W. Elhard (argued), State's Atty., Ashley, for plaintiff and appellant.

Gross Law Firm, Sidney A. Gross (argued), Ashley, for defendant and appellee.

MESCHKE, Justice.

The State appealed a county court order that dismissed a criminal charge that Donald W. Bettenhausen drove while his license was suspended, and that ordered reinstatement of Bettenhausen's license. We reverse and remand.

In October 1986 Bettenhausen was convicted of driving while under the influence of intoxicating liquor in violation of NDCC 39-08-01. Pursuant to NDCC 39-06.1-10, 24 points were assessed against Bettenhausen's driving record and his operator's license was suspended for 91 days. NDCC 39-08-01(4) requires that, for a first, second, or third offense, the sentence for conviction of driving under the influence of On July 21, 1989, Bettenhausen drove a truck and was charged with driving while his license was suspended, in violation of NDCC 39-06-42. The trial court did not rule before trial on Bettenhausen's pretrial motion to dismiss, deciding instead to "take the matter under advisement and apply what it learns during this hearing today in regard to ultimate dismissal or a conviction of this matter." At the trial without a jury, Bettenhausen and the State stipulated to certain facts and only one witness testified at the trial. The trial court dismissed the charge against Bettenhausen and ordered the Drivers License Division (the Division) to reinstate his license upon proof of financial responsibility and payment of the reinstatement fee. The State appealed.

                intoxicating liquor must include "an order for addiction evaluation by an appropriate licensed addiction treatment program."   Bettenhausen took the addiction evaluation required as part of his sentence, but failed to take the inpatient treatment recommended by his addiction counselor.  After the 91 day suspension, Bettenhausen did not obtain reinstatement of his operator's license
                

The State is not authorized to appeal from an acquittal. State v. Flohr, 259 N.W.2d 293 (N.D.1977). However, the State may appeal from a dismissal that has the same effect as an order quashing an information. NDCC 29-28-07; State v. Hogie, 424 N.W.2d 630 (N.D.1988). When a dismissal is based upon legal conclusions, rather than the resolution of some or all of the factual elements of the offense charged, a majority of this court has held that the dismissal is equivalent to an order quashing an information and is, therefore, appealable by the State. City of Wahpeton v. Desjarlais, 458 N.W.2d 330 (N.D.1990). The order dismissing the charge against Bettenhausen is appealable.

The State appeals the trial court's rulings (1) that Bettenhausen could challenge the validity of his continued suspension beyond 91 days for failure to take the recommended inpatient treatment; (2) that Bettenhausen's license was not validly under suspension on July 21, 1989; (3) that NDCC 39-06.1-10(3.1)(a) is unconstitutional because of vagueness or because of the unlawful assignment of a judicial function to a counselor or instructor; and (4) that the mandatory four-day imprisonment provision of NDCC 39-06-42 was inapplicable.

CONTINUING SUSPENSION

Bettenhausen challenged the validity of continued suspension for failure to take inpatient treatment recommended by an addiction counselor. In State v. Larson, 419 N.W.2d 897, 898 (N.D.1988) we said:

In State v. Mehlhoff, 318 N.W.2d 314 (N.D.1982), we held that the validity of a driver's license suspension may not be collaterally attacked at a trial for driving under suspension (DUS). We concluded that the proper time to challenge the validity of a driver's license suspension is at a hearing on the suspension.

Because Bettenhausen did not request a hearing on the administrative suspension of his license, we conclude that he may not challenge that suspension in his trial for driving under suspension.

The State asserts that the trial court incorrectly ruled that the Division did not reduce Bettenhausen's accumulated points as required by law and that Bettenhausen's license was not validly under suspension in July 1989. We agree.

The relevant part of NDCC 39-06.1-10(2) says:

If the licensing authority confirms, after hearing or opportunity for hearing, that the licensee's driving record has an accumulated point total of twelve or more points, the licensing authority shall suspend his operator's license according to the following schedule:

Accumulated Point Total: Period of Suspension:

a. Twelve 7 days

b. Thirteen and above 7 days for each

point over eleven

The relevant part of NDCC 39-06.1-12 says:

When a licensee completes a period of suspension ordered pursuant to section 39-06.1-10 or as ordered or recommended And, NDCC 39-06.1-13(1) says:

by a court of competent jurisdiction, the licensing authority shall reduce the point total shown on his driving record to eleven points.

The licensing authority shall reduce the point total shown on any licensee's driving record by one point for each three-month period during which no points are recorded against his driving record for a moving violation or a violation listed in paragraphs 13 through 18 of subdivision a of subsection 3 of section 39-06.1-10. The three-month period must be calculated from the date of entry of the last points against that licensee's driving record.

These sections outline relevant elements of the point system that the Division must apply in suspending an operator's license.

Bettenhausen's driving record showed that 14 points were still assessed against it on July 21, 1989, and that his license was still suspended. Bettenhausen argued that his suspension "would have been completed on or about January 19, 1987," that his driving record should then have shown 11 points, and that his "driving record as of July 21, 1989, should have shown, at the most, one point against it." A Division employee testified:

We do not reduce the points for serving the suspension day period until after the driving privileges have been reinstated. When his driving privileges are reinstated, he would be given thirteen points credit because he has served that 91 days and since at this point he only has twelve points, he would be down to zero points.

The trial court ruled that the Division's failure to "reduce the number of points against Bettenhausen's license to eleven after his license had been suspended for 91 days" was "contrary to law."

Once suspended, an operator's license remains suspended until reinstated. See State v. Brude, 222 N.W.2d 296, 297-298 (N.D.1974):

The phrase "period of revocation," as used in Chapter 39-06 of the North Dakota Century Code, means a period during which driving privileges are revoked and no application for a reinstatement may be made. Revocation will, however, continue after this period if the license is not reinstated by the licensing authority. If the individual driver wishes the revocation terminated he must make application and satisfy the licensing authority as to his qualification to drive a motor vehicle on our highways. See Section 39-06-36, N.D.C.C.

See also, State v. Mische, 448 N.W.2d 412, 414 (N.D.1989) ["When the period of suspension expires, an operator's license may not be returned or an operator's driving privileges may not be reinstated until the operator pays a $25 reinstatement fee."]; State v. Moore, 341 N.W.2d 373, 375 (N.D.1983) ["revocation continues until the driver is able to apply for a new license."]. A person whose license has been suspended is not privileged to drive until he meets reinstatement requirements and regains his operator's license.

Sections 39-06-35, 39-06.1-10(3.1)(a), and 39-16.1-07(2) of the North Dakota Century Code spell out requirements for reinstatement of a suspended operator's license.

When the period of suspension imposed under this title ceases, the operator's license or driving privilege that has been suspended may not be returned or reinstated, and remains under suspension, until the operator pays to the commissioner a reinstatement fee ... and, if applicable, until the provisions of subsection 3.1 of section 39-06.1-10 have been complied with.

NDCC 39-06-35. NDCC 39-06.1-10(3.1)(a) imposes an additional requirement for reinstatement when the suspension is for driving under the influence of intoxicating liquor:

If the commissioner is informed by a court that a person has been convicted of violating section 39-08-01 or equivalent ordinance, the commissioner, subject to the offender's opportunity for hearing under subsection 1, may not restore the operator's license to the offender until the offender furnishes to the commissioner the written statement of the counselor or instructor of an appropriate licensed NDCC 39-16.1-07(2) requires that a person convicted of DUI may not have his operator's license restored until he has filed proof of financial responsibility. Thus, once suspended, an operator's license remains under suspension after the declared period of suspension and until the license is reinstated.

addiction treatment program that the offender does not require either an education or treatment program or that the offender has physically attended the prescribed program and has complied with the attendance rules.

Reinstatement of Bettenhausen's license requires (1) that he pay the reinstatement fee; (2) that, as NDCC 39-06.1-10(3.1)(a) requires, Bettenhausen furnish a written statement from a counselor or instructor of an appropriate licensed addiction treatment program that he either (i) does not need an education or treatment program or (ii) has physically attended the prescribed program and has complied with the attendance rules; and (3) that Bettenhausen prove financial responsibility. It is undisputed that...