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Landsiedel v. Director

November 17, 2009

DARREN JAY LANDSIEDEL, PETITIONER AND APPELLANT
v.
DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, RESPONDENT AND APPELLEE
JENTRY GORDON NEU, PETITIONER AND APPELLANT
v.
DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, RESPONDENT AND APPELLEE



Appeal from the District Court of McLean County, South Central Judicial District, the Honorable David E. Reich, Judge. Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

REVERSED AND REMANDED.

[¶1] Darren Landsiedel and Jentry Neu separately appealed district court judgments upholding the decisions of the Department of Transportation to suspend their driving privileges for alcohol-related offenses. The Department held telephonic hearings in both cases, to which Landsiedel and Neu objected. We consolidated their appeals to determine whether N.D.C.C. § 39-20-05 permits the Department to conduct telephonic hearings regarding alcohol-related offenses under N.D.C.C. ch. 39-20. We hold the Department failed to conduct these administrative hearings in accordance with the law, reverse the revocation and suspension of Landsiedel and Neu's driver's licenses, and remand the cases for further proceedings consistent with this opinion.

I.

[¶2] A McLean County deputy sheriff arrested Landsiedel for driving under the influence of alcohol in June 2008. The Department issued a report and notice to Landsiedel informing him it intended to revoke his driving privileges. Landsiedel requested an administrative hearing under N.D.C.C. § 39-20-05. The Department's hearing officer issued a notice of hearing on June 20, 2008, scheduling the hearing for July 11, 2008 at the McLean County Courthouse. The hearing officer included a handwritten notation at the bottom of the notice stating: "I will be calling the sheriff's office to take testimony telephonically." On June 30, 2008, the hearing officer issued an amended notice of hearing, changing the date of the hearing to July 8, 2008. The amended notice of hearing did not include a notation about telephonic testimony.

[¶3] On July 8, 2008, Landsiedel, his counsel, the deputy, and a witness appeared in person at the McLean County Courthouse. The hearing officer telephoned the courthouse from Bismarck. Landsiedel's counsel objected to the hearing officer conducting the hearing by telephone, arguing the hearing officer could not properly judge the credibility of the witnesses over the phone. The hearing officer overruled Landsiedel's objection and revoked his driving privileges for one year. Landsiedel appealed the hearing officer's decision to the district court, which affirmed the revocation.

[¶4] In a separate case, a Dickinson police officer arrested Neu in August 2008 for driving while under the influence of alcohol. The Department issued a report and notice to Neu informing him it intended to revoke his driving privileges. Neu requested an administrative hearing under N.D.C.C. § 39-20-05. The Department's hearing officer sent a notice of administrative hearing to Neu, his counsel, and the arresting officer, indicating the hearing officer would hold the hearing by telephone.

[¶5] The telephonic hearing was held on August 20, 2008. Neu and the arresting officer appeared from separate telephones in Dickinson, while Neu's counsel and the hearing officer appeared from separate telephones in Bismarck. The hearing officer asked Neu's counsel if he received an email with the exhibits attached, and counsel indicated he had not. The hearing officer offered to postpone the hearing so Neu's counsel could go to the Department's Bismarck office to view the exhibits. Neu's counsel stated he would not go to the office because the Department should have personally provided him with the exhibits. Neu's counsel then objected to the hearing being held by telephone, claiming it substantially prejudiced Neu's right to a fair hearing. The hearing officer overruled the objection and suspended Neu's driving privileges for two years. Neu appealed the hearing officer's decision to the district court, which affirmed the suspension.

II.

[¶6] The Department's authority to suspend driving privileges is governed by statute, and the Department must meet basic and mandatory statutory requirements to have the authority to suspend driving privileges. Schaaf v. N.D. Dep't of Transp., 2009 ND 145, ¶ 9, 771 N.W.2d 237. This Court reviews the Department's decision to suspend driving privileges under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Barros v. N.D. Dep't of Transp., 2008 ND 132, ¶ 7, 751 N.W.2d 261. Under N.D.C.C. § 28-32-49, we must affirm the Department's order 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 ...


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