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French v. Director, North Dakota Department of Transportation

Supreme Court of North Dakota

June 27, 2019

Benjamin James French, Appellee
v.
Director, North Dakota Department of Transportation, Appellant

          Appeal from the District Court of Traill County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

          Charles J. Sheeley, Fargo, ND, for appellee.

          Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellant.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] The Department of Transportation appeals from a district court judgment reversing a Department hearing officer's decision, imposing a 91-day suspension of Benjamin French's driving privileges, and awarding him attorney fees. We conclude the court erred in holding French's driving record did not establish his operator's license had been previously revoked once within seven years preceding the date of his June 2018 arrest and the court erred in concluding the appropriate suspension period for his current offense is 91 days. We further conclude the court erred in awarding attorney fees. We reverse the judgment and reinstate the Department's decision suspending his driving privileges for 365 days.

         I

         [¶2] In June 2018, a Highway Patrol officer stopped and subsequently arrested French for driving under the influence. The results of an Intoxilyzer test showed French had a blood alcohol concentration in excess of the legal limit. French requested an administrative hearing on the Department's proposed suspension of his driving privileges.

         [¶3] In July 2018, a Department hearing officer held a hearing regarding whether to suspend French's driving privileges. The hearing officer subsequently issued a decision suspending his driving privileges for 365 days, concluding the greater weight of the evidence in the administrative record established French's license had been previously revoked for one year for refusing a chemical test in July 2011. The hearing officer specifically found his driver's license was previously revoked on August 11, 2011, after a Department administrative hearing, for a period of one year for refusing a chemical test on July 24, 2011. In its decision, the hearing officer addressed French's assertion that Ms driving record did not establish a prior suspension to enhance his suspension from 9ldays to 365 days:

Petitioner's Counsel asserted that the license suspension must be limited to 91 days because the statute, NDCC 39-20-04. l(1)(c), requires that evidence of the prior refusal show that the revocation was imposed "under this chapter" before it can be used to enhance the suspension from 91 days to 365 days. Counsel points out that Mr. French's driving record does not list a DUI conviction for 2011 that would show the county or state of occurrence for the refusal. No NDDOT witness appeared for the administrative hearing. Nevertheless, French's driving record shows that a Report & Notice was filed with NDDOT on July 27, 2011 according to the following entry: "ADM 5 7/24/11 REFUSAL 072711". In addition, Mr. French's driving record shows that he requested and received a NDDOT admimstrative hearing, and thereafter, his license was revoked for one year for refusing a chemical test. See Exhibit 1, p. 5/5 ("HEAR 5 07/24/11 SUSPENDED-HEARING HELD REFUSED CHEMICAL TEST PER 001 Y"). Hearing officers rely on the certified DRIVERS LICENSE DIVISION CENTRAL RECORD to obtain the information necessary to prepare the standard Exhibit 2, entitled NOTICE OF ADMINISTRATIVE HEARING BEFORE THE NDDOT DIRECTOR, upon receipt of each hearing requested under Chapter 39-20. The hearing officer is familiar with the DLD format of Mr. French's driving record and can reasonably infer from the administrative record that the 20111-year revocation of his driver's license for refusing a chemical test was conducted under North Dakota Century Code Chapter 39-20. Exhibit 1, p. 5/5 ("REVO 5 08/18/11 REFUSED CHEMICAL TEST 001Y L 08/18/11 L R 08/18/12 0001"). ... The certified, official NDDOT driving record calls for Mr. French's license to be suspended for 365 days. Exhibit 1, p. 5/5 ("HEAR 5 06/10/18 AWAITING HEARING OUTCOME BAC OVER LEGAL LIMITS PER 365 D").

         The hearing officer held that an entry in the certified, official driving record is presumed to be correct until rebutted and that French did not appear for the administrative hearing to testify or offer any evidence to suggest his 2011 revocation for refusal was an out-of-state proceeding. The hearing officer concluded the appropriate period for his driver's license to be suspended was 365 days. French appealed the decision to the district court.

         [¶4] The district court reversed the hearing officer's decision and imposed a 91 -day suspension of his driving privileges for a first offense. The court held there was insufficient evidence in the record for the hearing officer to conclude French had a prior suspension to support a 365-day suspension. The court essentially held that it was not possible to determine whether the July 2011 suspension for refusal was a suspension under N.D.C.C. ch. 39-20 from the notation contained in the copy of French's driving record. The court further held that the hearing officer erred in relying on his own experience in interpreting the driving record. The court also awarded attorney fees to French.

         II

         [¶5] Under N.D.C.C. § 28-32-49, this Court reviews the Department's decision suspending or revoking a driver's license in the same manner as the district court under N.D.C.C. § 28-32-46. Opp v. Dir., N.D. Dep't of Transp.,2017 ND 101, ...


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