State v. Harm

• Decision Date: 31 August 1972
• Docket Number: Cr. N
• Citation: 200 N.W.2d 387
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Harvey Lee HARM, Defendant and Appellant. o. 426.
• Court: North Dakota Supreme Court

Page 387

200 N.W.2d 387

STATE of North Dakota, Plaintiff and Respondent, v. Harvey Lee HARM, Defendant and Appellant.

Cr. No. 426.

Supreme Court of North Dakota.

Aug. 31, 1972.

Syllabus by the Court

1. The phrase 'an habitually reckless or negligent driver of a motor vehicle', statutory established as a cause for suspending a motor vehicle operator's license, although not statutorily defined, is not too vague and uncertain to stand as a lawful basis for the suspension of an operator's license by an administrative officer.

2. A motor vehicle operator's license vests in the licensee neither a contractual nor a property right. It may be suspended pursuant to the procedure and for the violations of the conditions prescribed by the statute under which it was issued.

3. Where a licensed motor vehicle operator commits three violations for speeding and two violations for stop signs within a six-month period, the commissioner is justified in classifying such operator as 'an habitually reckless or negligent driver of a motor vehicle' and may suspend his operator's license without preliminary hearing under authority of Section 39--06--32, N.D.C.C.

4. Procedural due process does not require a pre-suspension hearing before the State may suspend a motor vehicle operator's license for a violation of the statutory conditions under which it was issued, and require a filing of proof of financial responsibility before the license is restored, where the proceeding involves no accident and is not liability-related.

C. J. Schauss, Mandan, for defendant and appellant.

Helgi Johanneson, Atty. Gen., Bismarck, and Lester J. Schirado, State's Atty., Mandan, for plaintiff and respondent.

TEIGEN, Judge.

The defendant Harm has appealed from a final judgment in a post-conviction proceeding in which the trial court refused to set aside a conviction for driving a motor vehicle while his operator's license was suspended.

The conviction is being challenged in this post-conviction proceeding on the grounds that the conviction was in violation of the constitution of the United States and the constitution of the state of North Dakota, and that evidence exists of material facts not previously presented and heard. Section 29--32--01(1)(a)(d), N.D.C.C. (Uniform Post-Conviction Act), provides:

'1. Any person who has been convicted of, or sentenced for, a crime and who claims:

'(a) That the conviction or the sentence was in violation of the constitution, laws, or treaties of the United States or the constitution or laws of this state;

'(d) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

'may institute, without paying a filing fee, a proceeding under this chapter to secure relief.'

The order suspending Harm's operator's license, on which the State relied in the prosecution, was issued as one of a series of license suspension orders going back to April 28, 1967, when the first order was issued. It was issued on the ground that Harm was an habitually reckless or negligent driver. The order suspended his license for thirty days. However, Harm violated this order, and also subsequent extension orders, by driving while his license was suspended and, as a result, there was almost a continuous suspension of his privilege to drive a motor vehicle from that date.

There is no dispute on the facts. In this proceeding Harm's position is that the first order, issued on April 28, 1967, was void because he was not given a hearing before the order was entered and, further, that the records in the possession of the commissioner of the North Dakota State Highway Department (hereinafter commissioner) did not establish that he was an habitually reckless or negligent driver. He also contends that the several subsequent extension orders further suspending his operator's license are also void because these are based on the first order which was void and, further, that he was not afforded a hearing before the extension orders were issued. He argues that the last extension order suspending his operator's license for one year, which the court found he had violated by driving a motor vehicle while his operator's license was suspended, was also void and that therefore the conviction must be set aside in these proceedings.

The statutes in effect in 1967, upon which the first order suspending Harm's license was entered on April 28 of that year, provided:

'The commissioner may suspend the license of an operator without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee:

'1. * * *

'2. * * *

'3. Is an habitually reckless or negligent driver of a motor vehicle; * * *'

Section 39--06--32(3), N.D.C.C.

The record before the commissioner upon which the first order was made consists of three speeding violations, one stop sign violation and one stop light violation, all of which violations occurred within a six-month period from September 24, 1966, to March 24, 1967. It is further noted that all of these violations are contrary to the ordinances of the city of Mandan, North Dakota, and it is therefore concluded that the violations occurred within the city.

The first order, entered on April 28, 1967, suspended Harm's license for a period of thirty days. Under this order Harm surrendered his driver's license to the commissioner on May 15, 1967.

Harm did not request the hearing allowed him under the provisions of Section 39--06--33, N.D.C.C., which provided:

'Upon suspending the license of any person as authorized in section 39--06--32, the commissioner shall immediately notify the licensee in writing and upon his request shall afford him an opportunity for a hearing as early as practical within not to exceed twenty days after receipt of such request in the county wherein the licensee resides unless the department and licensee agree that such hearing may be held in some other county. Upon such hearing the commissioner or his duly authorized agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require a re-examination of the licensee. Upon such hearing the commissioner shall either rescind his order of suspension or, good cause appearing therefor, may continue, modify, or extend the suspension of such license or revoke such license.' Ch. 277, S.L.1963, Sec. 8.

On May 7, 1967, Harm was apprehended while driving a motor vehicle and a traffic summons and complaint were issued charging him with driving a motor vehicle while his operator's license was suspended. He pleaded guilty to that charge and, upon receipt of the record of conviction, the commissioner by order, extended the license suspension an additional thirty days and further ordered that Harm would not be entitled to a return of his license until he had furnished proof of financial responsibility. This order was also in compliance with the statute, which provides:

'The commissioner upon receiving a record of the conviction of any person upon a charge of driving a vehicle while the license of such person was suspended shall extend the period of such suspension for an additional like period * * *'

Section 39--06--43, N.D.C.C.

The salient parts of Section 39--16.1--07(2), N.D.C.C. (Ch. 281, S.L.1963), provided:

'If a person by final order or judgment is convicted of or forfeits any bail or collateral deposited to secure an appearance for trial for any offense requiring the revocation of license, or for operating a motor vehicle upon the highways while his privilege to drive is under suspension, revocation, or cancellation, or for driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any othre drug to a degree which renders him incapable of safely driving a motor vehicle, no license shall be thereafter issued to such person until he shall give and thereafter maintain proof of financial responsibility.' Ch. 281, S.L. 1963, Sec. 1.

It appears that Harm furnished proof of financial responsibility and a restricted driver's license was issued to him. The license was restricted to the operation of vehicles covered by the financial responsibility filing.

On November 24, 1967, Harm was apprehended and charged with violating the restriction and, after a plea of not guilty, was found guilty by the court after trial. Upon receipt of the record of conviction the commissioner, on January 11, 1968, entered an order suspending Harm's license for three additional months.

On January 30, 1968, the commissioner entered another order suspending Harm's license because he had failed to maintain proof of financial responsibility (due to a cancellation of his insurance policy) as required by the order of May 24, 1967. Harm surrendered his restricted driver's license to the commissioner on January 19, 1968.

On June 25, 1968, Harm was involved in an automobile accident in the state of Minnesota and failed to deposit $375 security as required by Minnesota law. This fact was communicated to the commissioner of this state on September 11, 1968, and, under authority of Section 39--06--27, ND.C.C., the commissioner entered an order suspending Harm's license and driving privileges in this state until the requisites of the Minnesota statutes had been complied with. The Minnesota requisites were met and the commissioner issued an order of rescission of the above order on July 25, 1969. The parties agree that this incident has no bearing on the issues in this proceeding.

On May 13, 1969, the commissioner received a report that Harm had forfeited bail, which is the equivalent to a conviction (Section 39--06--30, N.D.C.C.), on a careless driving charge for which he was cited on April 29, 1969. On this record the commissioner entered an order extending the suspension of Harm's driver's license for one year on the ground that he had permitted...