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Masset v. Director

November 9, 2010

BRIAN MICHAEL MASSET, PETITIONER AND APPELLANT
v.
DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, RESPONDENT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

The opinion of the court was delivered by: Crothers, Justice

REVERSED AND REMANDED.

[¶1] Brian Michael Masset appeals the district court's judgment affirming the Department of Transportation's order suspending his driver's license for 180 days. We reverse and remand for creation of the record required by law.

I.

[¶2] Masset was arrested for driving under the influence of an intoxicating liquor on July 4, 2009. On July 22, 2009, Masset requested a hearing regarding the possible suspension or revocation of his operator's license, which the Department held on August 12, 2009. The only witness called at the hearing was arresting officer, Highway Patrol Trooper Jeremiah Bohn. After hearing Officer Bohn's testimony, the hearing officer concluded Masset's blood test results required suspension of Masset's driving privileges, and Masset's operator's license was suspended for 180 days.

[¶3] Masset petitioned for a reconsideration hearing based on a discrepancy with the times on the Specimen Submitter's Checklists. His petition was granted. The hearing officer conducted a reconsideration hearing on September 16, 2009, and sustained the earlier suspension order after receiving additional testimony from Officer Bohn.

[¶4] When Masset received the transcript for his appeal, he discovered "the first approximately ten minutes of the administrative hearing were not recorded either because of operator error [hearing officer] or because of a malfunction in the recording equipment." The missing portion of the transcript includes Officer Bohn's direct testimony about the traffic stop and the arrest. The hearing officer wrote a paragraph summarizing the missing testimony and included it in the transcript. It is uncontested that neither party knew about the missing portion of the transcript at the reconsideration hearing.

[¶5] Masset appealed the Department's order to the district court arguing the Department violated N.D.C.C. §§ 28-32-36 and 28-32-44 because a portion of the recording from the hearing was missing and because the chemical blood test results were improperly admitted. The district court affirmed the Department's order, finding that "the Appellant exercised his right to an administrative hearing and upon discovery of the inadvertent failure to record the beginning of said hearing, was granted a hearing for reconsideration, including the opportunity to present testimony." Masset timely filed this appeal.

II.

[¶6] "When a decision of an administrative agency is appealed from the district court to this Court, we review the decision of the agency." Rennich v. N.D. Dep't of Human Servs., 2008 ND 171, ¶ 10, 756 N.W.2d 182 (quoting J.P. v. Stark County Soc. Servs. Bd., 2007 ND 140, ¶ 9, 737 N.W.2d 627). "Courts exercise limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32." Zimmerman v. N.D. Workforce Safety and Ins. Fund, 2010 ND 42, ¶ 4, 779 N.W.2d 372. This Court must affirm the agency'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 [N.D.C.C. ch. 28-32] have not been complied with in the ...


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