Stephens v. State Transp. Dept., Motor Vehicle Div., 9318

• Decision Date: 09 July 1987
• Docket Number: No. 9318,9318
• Citation: 106 N.M. 198,1987 NMCA 95,740 P.2d 1182
• Parties: Joyce S. STEPHENS, Petitioner-Appellant, v. STATE of New Mexico, TRANSPORTATION DEPARTMENT, MOTOR VEHICLE DIVISION, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 1182

740 P.2d 1182

106 N.M. 198

Joyce S. STEPHENS, Petitioner-Appellant, v. STATE of New Mexico, TRANSPORTATION DEPARTMENT, MOTOR VEHICLE DIVISION, Respondent-Appellee.

No. 9318.

Court of Appeals of New Mexico.

July 9, 1987.

[106 NM 198] LeRoy Duarte, Albuquerque, for petitioner-appellant.

Wanda Wilkinson, Staff Atty., Transp. Dept., Santa Fe, for respondent-appellee.

OPINION

MINZNER, Judge.

Petitioner appeals from an order of the district court affirming a decision of the Motor Vehicle Division (MVD or division) to revoke petitioner's driver's license for 90 days pursuant to NMSA 1978, Section 66-8-111(C)(1) (Cum.Supp.1986). Under that statute, the director of the division shall revoke a license for a period of 90 days "upon receipt of a statement signed under penalty of perjury" and containing various grounds to believe that the holder of the license had been driving while intoxicated. Id. The district court found that the officer's testimony under oath at the administrative hearing satisfied the statutory requirement. We hold that it did not, and we reverse and remand with instructions.

Petitioner was arrested by an Albuquerque police officer for driving while intoxicated (DWI) and other traffic violations. The arresting officer transported petitioner to a Batmobile where a breath test was administered. The test indicated that petitioner's blood alcohol level was 0.124. The officer then completed an affidavit as required by Section 66-8-111; however, the affidavit was not notarized, although the form used provides a place for a notary's signature. The officer took possession of petitioner's license and issued her a temporary one. See NMSA 1978, Sec. 66-8-111.1 (Cum.Supp.1986). The record indicates that the officer submitted the license with his statement to MVD; that he gave petitioner written notice of revocation at the time he took her license; and that the division also gave her written notice of revocation by certified mail. See id.; Sec. 66-8-111(C)(1); NMSA 1978, Sec. 66-8-112(A) (Cum.Supp.1986).

Petitioner requested a hearing pursuant to Section 66-8-112(B). At that time, the arresting officer testified under oath. The hearing officer found against petitioner on each of the issues listed for determination at the administrative hearing, see Section 66-8-112(F), and on behalf of the director entered an order sustaining the revocation. See id.

On appeal, the district court found that "the fact that the original statement was not under oath was cured by the subsequent testimony of both officers under oath at the hearing, so the possibility of prejudice to the Petitioner was removed." Based on the record of the administrative hearing, the court concluded that the division had jurisdiction of the matter and that reasonable grounds existed for the division to revoke petitioner's license. See Sec. 66-8-112(G).

While petitioner's appeal to this court was pending, this court held that the statutory requirement of a sworn statement is jurisdictional. See State of New Mexico, Transp. Dep't, Motor Vehicle Div. v. Herman, 106 N.M. 138, 740 P.2d 132 (Ct.App.1987). In that case, as in this one, the state argued that the statutory requirement was directory rather than mandatory. However, we declined to answer the argument because it had not been raised at the trial level. In this case, the issue was preserved, and we address it.

After this case had been submitted to a panel for submission, MVD moved to dismiss the appeal on the ground that "[t]he Motor Vehicle Division has offered to rescind the revocation of Petitioner's driving privileges, and to remove the revocation from her driving record." The motion was opposed. The motion was premised on the view that State v. Herman was dispositive. We held the motion in abeyance pending disposition of the appeal by the panel. See SCRA 1986, 12-401(B). For the reasons that follow, we conclude that the statutory requirement of a sworn statement is mandatory and jurisdictional. We deny the motion to dismiss the appeal.

Section 66-8-111(C) states:

The director, upon receipt of a statement signed under penalty of perjury from a law enforcement officer stating that he had reasonable grounds to believe the arrested person had been driving a motor vehicle within this state while under the influence of intoxicating liquor and that the person submitted to chemical testing pursuant to Section 66-8-107 NMSA 1978 and the test results indicated one-tenth of one percent or more by weight of alcohol in the person's blood if the person is eighteen years of age or older or five one-hundredths of one percent or more by weight of alcohol in the person's blood if the person is less than eighteen years of age, shall revoke the person's license or permit to drive or his nonresident operating privilege for a period of:

(1) ninety days if the person is eighteen years of age or older * * *

The parties agree that because the officer failed to have the affidavit which he sent to MVD notarized, it is not a statement under penalty of perjury. Petitioner argues that because of this deficiency MVD did not have authority to revoke her license, as the requirement in Section 66-8-111(C) is mandatory. MVD argues that the statutory requirement is directory, not mandatory. MVD further argues that sufficient safeguards are present to protect a driver against the possible prejudicial effects of a false statement. MVD notes petitioner may request a hearing on the validity of the revocation and that, if a hearing is requested, the state has to prove by a preponderance of the evidence that the essential elements required for revocation have been met. MVD alleges that once a hearing is held the revocation is no longer based upon the officer's statement, but rather, the hearing officer's decision effectuates the revocation.

With respect to petitioner's argument that the statutory requirement is mandatory, we note that not all mandatory requirements are jurisdictional. See Taylor v. Department of Transp., 260 N.W.2d 521 (Iowa 1977). Even mandatory requirements can be avoided under certain circumstances. Cf. Redman v. Board of Regents, 102 N.M. 234, 693 P.2d 1266 (Ct.App.1984) (failure to commence and complete timely administrative hearing was a mandatory but not a jurisdictional requirement; it could be waived or avoided if delay occurred for good cause).

We understand the division's position on appeal as an argument in favor of construing the statutory provision for a sworn statement as directory, rather than mandatory, but even if mandatory, as a requirement that can be avoided in the absence of prejudice. In our view, the statutory scheme does not support the state's argument. Rather, taken as a whole, the statute supports a conclusion that the requirement in question is mandatory and jurisdictional.

MVD cites Taylor v. Department of Transp. in support of their argument that MVD had jurisdiction to revoke petitioner's license. Taylor v. Department of Transp. involved a statutory requirement that a hearing be held within 20 days if requested by the driver. The department failed to provide the hearing within 20 days, but stayed the revocation pending the hearing. In holding that the failure to hold a timely hearing did not divest the department of jurisdiction, the court noted that the statutory provision was designed to provide order and promptness in the administrative process, and was not of the essence of the thing to be done. We do not find this reasoning applicable to the provision in question, which initially invokes the department's authority and establishes its right to conduct a hearing.

Section 66-8-111(C) states that "[t]he director, upon receipt of a statement signed under penalty of perjury * * * shall revoke the person's license * * *" Notice of revocation shall be served on the driver by the officer making the arrest. Sec. 66-8-111.1. The driver has ten days from the date the notice is served to request a hearing. Sec. 66-8-112(B). Failure to request a hearing within ten days results in forfeiture of the right to a hearing. Id. Revocation is effective 30 days from the date of notice. Sec. 66-8-112(A). Therefore, if the driver does not take affirmative action to request a hearing within ten days, his license will have been revoked based solely on the officer's affidavit. If a hearing is requested, it is limited to the issues specified in the statute, see Section 66-8-112(E), and the result is an order "either rescinding or sustaining" the prior determination. See Sec. 66-8-112(F). This court has stated that holding a driver's license is an important, protectible right, Minero v. Dominguez, 103 N.M. 551, 710 P.2d 745 (Ct.App.1985), and we agree with the Washington Court of Appeals that "[t]he law disapproves of visiting serious...