State v. Kouba

• Decision Date: 13 May 1982
• Docket Number: Cr. N
• Citation: 319 N.W.2d 161
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Albert KOUBA, Defendant and Appellant. o. 777.
• Court: North Dakota Supreme Court

Page 161

319 N.W.2d 161

STATE of North Dakota, Plaintiff and Appellee, v. Albert KOUBA, Defendant and Appellant.

Cr. No. 777.

Supreme Court of North Dakota.

May 13, 1982.

Glen Dill, Asst. State's Atty., Kenmare, for plaintiff and appellee.

Albert Kouba, pro se.

ERICKSTAD, Chief Justice.

Albert Kouba appeals from a verdict of guilty of the crime of driving while his license was under suspension. The verdict was returned by a jury in the County Court with Increased Jurisdiction of Ward County. We affirm.

Kouba basically raises two issues. First, he contends that the conviction should be reversed because he was not afforded a hearing prior to the suspension of his license. Secondly, he contends that the conviction should be reversed because he has an inalienable right to drive upon the highways of North Dakota and therefore he does not need an operator's license issued by the State.

Through six separate speeding violations, Kouba accumulated 13 points against his operator's license. Section 39-06.1-10, N.D.C.C., provides:

"1. ... When the driving record shows that the licensee has an accumulated point total of twelve or more points, assigned on the basis of the schedule contained in subsection 3 of this section, the authority shall notify the licensee of its intention to suspend the operator's license and of the availability of an administrative hearing...." Sec. 39-06.1-10(1) Kouba was notified by the North Dakota Highway Department of the availability of an administrative hearing. The North Dakota Century Code requires that the licensee must make a written request for a hearing within 10 days after the mailing of the notice. Id. If a request for a hearing is made, the hearing is to be held in accordance with the applicable provisions of the Administrative Agencies Practice Act codified at Chapter 28-32, N.D.C.C.

On February 4, 1981, Kouba requested a hearing for February 17, 1981, at 11:00 a.m. He further requested that it be held at his home in Minot. The request for a hearing at Kouba's home was denied by letter dated February 6, 1981. That letter, signed by the administrative hearing officer, set the hearing date and place for February 17, 1981, at 11:30 a. m., on the third floor of the North Dakota State Highway Department Building in Bismarck. Kouba responded to that letter on February 11, 1981. In his response, he told the hearing officer that he could not afford gasoline to drive to the hearing, and ended his letter by saying, "See you February 17, in Minot, ND." Despite Kouba's insistance, the hearing was held on February 17, at the State Highway Department Building in Bismarck. Kouba was absent.

On February 19, 1981, an order of suspension was issued with an effective date of February 21, 1981. Under the provisions of Section 39-06-37, N.D.C.C., a suspended license must be surrendered to and retained by the Highway Commissioner until the suspension expires. In conformity with his lack of cooperation to date, Kouba did not return or surrender his driver's license and, therefore, pursuant to Section 39-06.1-14, N.D.C.C., his suspension was extended one day for each day he failed to surrender his license. His license was under suspension on March 23, 1981, when he was stopped by Officer Miles Anderson of the North Dakota Highway Patrol for making a left-hand turn at a place where it is prohibited. Officer Anderson asked to see Kouba's driver's license. At this juncture, Kouba produced what he describes as a "constitutional driver's license." That license reads as follows:

"CONSTITUTIONAL DRIVER'S LICENSE

"I, being a sovereign citizen of the United States of America, do hereby, by this document, license myself to operate a motor vehicle or any other mechanical device on or off the public highways, roads or right-of-ways anywhere in these United States and continue to exercise the privilege of this right as long as in so doing, I do not infringe upon the life, liberty, or property of another person or endanger the health, morals and safety of society."

Kouba later produced his North Dakota driver's license and Anderson determined that it was under suspension. Kouba was then given a ticket for driving a motor vehicle while his license was under suspension. He was subsequently tried and convicted of this offense.

Kouba has made a plethora of arguments. We, however, need only address the issues which are controlling and decisive of this appeal. Nodland v. Nokota Co., 314 N.W.2d 89, 93 (N.D.1981).

First, we address Kouba's argument that he was not accorded a hearing as provided for by the North Dakota Century Code. He contends that his driver's license was improperly suspended because he was not accorded a hearing in his home county as he had requested. It is his contention that Section 39-06-33, N.D.C.C., which provides that a driver's license may not be suspended under the provisions of Section 39-06-32, N.D.C.C., without a hearing "in the county of the licensee's residence," is controlling in this action. However, Section 39-06-33, N.D.C.C., is applicable only for "matters of driver's license suspension arising under the provisions of section 39-06-32."

Section 39-06-32, N.D.C.C., provides for six specific instances in which the Highway Commissioner may suspend the license of an operator. Those instances include commission of an...