Whitecalfe v. North Dakota Dept. of Transp.

• Decision Date: 28 February 2007
• Docket Number: No. 20060202.,No. 20060269.,20060202.,20060269.
• Citation: 2007 ND 32,727 N.W.2d 779
• Parties: Tyler Allen WHITECALFE, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee George Steven Berg, Plaintiff and Appellant, v. North Dakota Department of Transportation, Defendant and Appellee.
• Court: North Dakota Supreme Court

727 N.W.2d 779

2007 ND 32

Tyler Allen WHITECALFE, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee George Steven Berg, Plaintiff and Appellant, v. North Dakota Department of Transportation, Defendant and Appellee.

No. 20060202.

No. 20060269.

Supreme Court of North Dakota.

February 28, 2007.

Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for plaintiffs and appellants.

Zachary Evan Pelham, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] In consolidated appeals, Tyler Whitecalfe appealed from a district court judgment affirming a North Dakota Department of Transportation hearing officer's decision to revoke his driving privileges for one year, and George Berg appealed from a district court judgment affirming a North Dakota Department of Transportation hearing officer's decision to revoke his driving privileges for four years. Whitecalfe and Berg argue the North Dakota Department of Transportation ("the Department") lacked authority to revoke their driving privileges and they claim they were denied due process. We affirm.

I

[¶ 2] Whitecalfe was arrested for driving under the influence of alcohol on February 3, 2006. A law enforcement officer advised Whitecalfe of the implied consent law and asked for a blood specimen to determine Whitecalfe's blood alcohol content. Whitecalfe refused to consent to the test. The law enforcement officer immediately took possession of Whitecalfe's driver's license, and issued Whitecalfe a twenty-five day temporary operator's permit on the Department's report and notice form. The report and notice form consists of an original and two copies. The original was sent to the Director of the Department, the law enforcement officer kept one copy, and the third copy ("the driver's copy") was given to Whitecalfe. The driver's copy of the report and notice informed Whitecalfe that his driving privileges could be revoked for up to four years because he refused a chemical test, and explained how to request an administrative hearing to contest the proposed revocation. The Department's copy of the report and notice was identical to the driver's copy except the Department's copy did not include a section explaining the process for requesting a hearing, and instead included a section for the law enforcement officer's statement of probable cause explaining the officer's factual basis for believing Whitecalfe was in actual control of a motor vehicle while under the influence of alcohol.

[¶ 3] Whitecalfe timely requested an administrative hearing to contest the revocation. Before the hearing, Whitecalfe received a copy of the Department's report and notice, which included the officer's statement of probable cause. At the hearing, Whitecalfe argued the Department lacked jurisdiction and he claimed he was denied due process because the driver's copy of the report and notice did not contain the officer's statement of probable cause. An administrative hearing officer revoked Whitecalfe's driving privileges for one year, and the Burleigh County District Court affirmed the hearing officer's decision.

[¶ 4] In a separate incident, Berg was arrested for driving under the influence of alcohol on March 18, 2006. A law enforcement officer advised Berg of the implied consent law and requested a breath specimen for a chemical test. Berg refused to consent to the chemical test. Berg was given the driver's copy of the report and notice informing him that his license could be revoked for up to four years for refusing to consent to the chemical test and notifying him that he would not be issued a temporary operator's permit because his license was already suspended. The report and notice also informed Berg of the procedures to request an administrative hearing to contest the proposed revocation. The original report and notice was sent to the Director of the Department. The driver's copy of the report and notice was identical to the original sent to the Department except the driver's copy included the instructions for requesting a hearing to contest the revocation and did not contain the law enforcement officer's statement of probable cause.

[¶ 5] Berg timely requested an administrative hearing to challenge his revocation. Before the hearing, Berg received a copy of the Department's report and notice form containing the law enforcement officer's statement of probable cause. At the hearing, Berg argued the Department lacked jurisdiction and claimed he was denied due process because the driver's copy of the report and notice did not contain the officer's statement of probable cause. An administrative hearing officer revoked Berg's driving privileges for four years, and the Stark County District Court affirmed the hearing officer's decision.

II

[¶ 6] Whitecalfe and Berg argue the Department lacked authority to revoke their driving privileges and they were denied due process because the driver's copy of the report and notice did not contain the law enforcement officer's statement of probable cause. Relying on Aamodt v. North Dakota Dep't of Transp., 2004 ND 134, 682 N.W.2d 308, and Jorgensen v. North Dakota Dep't of Transp., 2005 ND 80, 695 N.W.2d 212, they claim due process and N.D.C.C. § 39-20-04 require the driver to be informed about the officer's factual basis for probable cause before deciding whether to request an administrative hearing to contest the revocation.

[¶ 7] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of the Department's administrative suspension or revocation of a person's driver's license. Aamodt, 2004 ND 134, ¶ 12, 682 N.W.2d 308. Our review of appeals involving license suspensions or revocations is limited, and we give deference to the Department's findings. Id. We affirm the Department's decision unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

A

[¶ 8] Section 39-20-04, N.D.C.C., explains the procedures that must be followed before an individual's driving privileges may be revoked for refusal to submit to testing:

the law enforcement officer shall immediately take possession of the person's operator's license if it is then available and shall immediately issue to that person a temporary operator's permit, if the person then has valid operating privileges, extending driving privileges for the next twenty-five days or until earlier terminated by a decision of a hearing officer under section 39-20-05. The law enforcement officer shall sign and note the date on the temporary operator's permit. The temporary operator's permit serves as the director's official notification to the person of the director's intent to revoke driving privileges in this state and of the hearing procedures under this chapter. The director, upon the receipt of that person's operator's license and a certified written report of the law enforcement officer in the form required by the director, forwarded by the officer within five days after issuing the temporary operator's permit, showing that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01 or equivalent ordinance . . . that the person was lawfully arrested if applicable, and that the person had refused to submit to the test or tests under section 39-20-01 or 39-20-14, shall revoke that person's license or permit to drive and any nonresident operating privilege for the appropriate period under this section . . . subject to the opportunity for a prerevocation hearing and postrevocation review as provided in this chapter.

If the basic and mandatory provisions of this statute have not been met, the Department lacks authority to revoke an individual's driving privileges. See Aamodt, 2004 ND 134, ¶ 15, 682 N.W.2d 308. Interpretation of a statute is a question of law, which is fully reviewable on appeal. Jorgensen, 2005 ND 80, ¶ 7, 695 N.W.2d 212.

[¶ 9] Relying on Aamodt and Jorgensen, Whitecalfe and Berg claim the Department lacked authority to revoke their driving privileges because the driver's copy of the report and notice did not include the officer's statement of probable cause.

[¶ 10] In Aamodt, the driver was arrested for driving while under the influence of alcohol, submitted to a chemical test, and was given a copy of the report and notice informing him of the Department's intent to suspend his driving privileges. Aamodt, 2004 ND 134, ¶ 3, 682 N.W.2d 308. A law enforcement officer sent a copy of the report and notice to the Department, but that copy did not include the law enforcement officer's statement of reasonable grounds for believing the driver was in actual physical control of a vehicle while under the influence of alcohol. Id. at ¶ 15, 682 N.W.2d 308. We said the Department's authority to suspend a person's license was given by and dependant on the terms of the statute. Id. We held the statutory provision requiring the officer to show probable cause in the report and notice to the Department was a basic and mandatory provision, and therefore the Department lacked the...