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Wolfer v. North Dakota Dep't of Transportation

April 6, 2010

CHRISTIAN ROBERT WOLFER, PLAINTIFF AND APPELLANT
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, DEFENDANT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

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

REVERSED.

[¶1] Christian Robert Wolfer appealed from the district court's judgment affirming the Department of Transportation's suspension of his driving privileges for 365 days. We reverse because the Department did not conduct the hearing in accordance with the law when the hearing officer unilaterally decided to conduct a portion of the hearing telephonically.

I.

[¶2] On April 25, 2009, Wolfer was arrested for driving under the influence of intoxicating liquor. Wolfer requested a hearing on the suspension or revocation of his driving privileges. The Department scheduled a hearing for June 3, 2009, and sent Wolfer a notice. The notice did not indicate any portion of the hearing would be conducted telephonically or that any testimony would be taken telephonically.

[¶3] At the hearing, North Dakota Highway Patrol Officer Thomas Iverson testified telephonically. The day before the hearing, Officer Iverson had a telephone conversation with the hearing officer and Wolfer's attorney. Officer Iverson discussed the possibility that he would not be able to testify in person in Bismarck because he would be in Devils Lake for a job interview. At the hearing, Wolfer objected to the hearing officer allowing Officer Iverson to testify telephonically on due process grounds. He objected because the notice did not indicate there would be telephonic testimony. He argued taking telephonic testimony would substantially prejudice and infringe his right to a fair hearing because the hearing officer would not be able to judge Officer Iverson's demeanor or credibility. Wolfer asserted the hearing officer would not be able to determine if Officer Iverson was alone in the room from which he was testifying, or if he was testifying from notes or documents. Wolfer also argued there was not good cause to take telephonic testimony.

[¶4] The hearing officer offered to continue the hearing, but Wolfer stated he was not able to take additional time off work for another hearing. After determining the parties would not be able to agree on a new date for the hearing, the hearing officer asked Officer Iverson if there was anyone else in the room with him, and Officer Iverson said there was not. The hearing officer then overruled Wolfer's objection and admonished Officer Iverson to testify only from memory, and to notify the hearing officer when he was testifying from his report. The hearing officer explained Wolfer's right to due process was not violated because "[t]he only thing that is different from a hearing where the trooper is in person is that his testimony is by telephone."

[¶5] Before Officer Iverson testified, the hearing officer advised him of the penalty for perjury and Officer Iverson took the oath. Wolfer's attorney objected to the oath because the oath was not given in person and the hearing officer could not verify the identity of the person taking the oath telephonically. The hearing officer overruled the objection. The hearing officer again had Officer Iverson confirm that he was alone and again admonished him to testify from memory, and to inform the hearing officer before he referred to his notes.

[¶6] During his cross-examination of Officer Iverson, Wolfer's attorney asked Officer Iverson if he was able to diagram the roadway where he stopped Wolfer's vehicle. Officer Iverson stated he would not be able to do so, because he was not present at the hearing. Wolfer's attorney also asked Officer Iverson if he would be able to demonstrate how he performed the horizontal gaze nystagmus test. Officer Iverson responded he would not be able to do so because he was not present at the hearing. Wolfer's attorney did not ask Officer Iverson to verbally describe the roadway or how he performed the horizontal gaze nystagmus test. At the close of Officer Iverson's testimony, the hearing officer stated, "I will note for the record that I recognized the voice of Thomas Iverson testifying here today. I've had Trooper Iverson testify at numerous hearings in the past."

[¶7] The hearing officer concluded Wolfer had not demonstrated any prejudice as a result of Officer Iverson's telephonic testimony. Thus, his right to due process had not been violated. The hearing officer suspended Wolfer's driving privileges for 365 days.

[¶8] Wolfer appealed the hearing officer's decision to the district court. The district court affirmed the decision. The district court explained, "Section 28-32-35 specifically permit[s] the use of telephonic testimony at administrative hearings." The district court also asserted, "Wolfer cannot claim that his due process rights were violated due to his surprise that testimony would be offered telephonically when he declined the hearing officer's invitation for a continuance and elected to proceed with the hearing." According to the district court, the cross-examination of Officer Iverson did not demonstrate prejudice because Wolfer's attorney did not ask Officer Iverson to verbally describe the road where he stopped Wolfer, or how he conducted the horizontal gaze nystagmus test. The district court explained Wolfer could have shown prejudice if he had asked for the testimony and the testimony was ineffective. Regarding the telephonic oath, the district court cited Lawrence v. Delkamp, 2008 ND 111, ¶ 15, 750 N.W.2d 452 and stated, "Under the facts and circumstances of the instant case, it appears that in the hearing officer's discretion there existed good cause and adequate safeguards in place to allow Trooper Iverson to testify by telephone." The district court determined the hearing officer did not violate Wolfer's right to due process.

II.

[¶9] On appeal, Wolfer argues the Department violated his right to due process, and did not conduct the hearing according to the law, when it took Officer Iverson's testimony telephonically. The Department argues Wolfer was not prejudiced by the telephonic testimony.

[¶10] This Court's standard of review of a driver's license suspension is well established: 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. ...


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