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Eugene Mike Berger v. North Dakota Department of Transportation

March 22, 2011

EUGENE MIKE BERGER,
PLAINTIFF AND APPELLANT
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION,
DEFENDANT AND APPELLEE



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

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

N.D. Supreme Court

Berger v. N.D. Dep't of Transportation,

2011 ND 55

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Kapsner, Justice.

Berger v. North Dakota Department of Transportation

No. 20100189

[¶1] Eugene Berger appealed from a district court judgment affirming the decision of the hearing officer of the North Dakota Department of Transportation suspending Berger's driving privileges for two years. We affirm, concluding the hearing officer did not violate the law or deny Berger his right to a fair hearing or due process when he rescheduled Berger's administrative hearing.

I

[¶2] Berger was arrested for driving under the influence of alcohol on January 9, 2010. Berger requested an administrative hearing, and the hearing was set for March 1, 2010, at 2:30 p.m. The arresting officer subsequently notified the hearing officer that he was unavailable on that date, so the hearing officer, noting that Berger's counsel had another hearing scheduled before him on February 23 at 10:00 a.m., rescheduled Berger's hearing to February 23 at 11:00 a.m. Berger's counsel objected in writing to the rescheduling of the hearing because Berger would be unable to attend, but the hearing officer apparently did not receive counsel's letter until the morning of the February 23 hearing.

[ΒΆ3] Berger's counsel appeared at the scheduled February 23 hearing, but objected to continuing with the hearing on that date rather than at the original scheduled date and time. The hearing officer suggested the hearing be rescheduled to February 26, but Berger's counsel indicated he was in trial that day. The arresting officer then suggested that he could attend on the original scheduled date, March 1, if the hearing were moved to 8:00 a.m. Berger's counsel initially indicated that Berger had taken the entire day off from work on March 1 and would be available at that time but, when asked if he wanted a continuance, he requested that he be allowed to contact Berger over the noon hour to confirm that Berger would be available at 8:00 a.m. The hearing officer ...


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