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.
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.
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.
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").
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.
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.
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, ...