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Burley v. North Dakota Department of Transportation12/22/1999
n issued as a matter of law, or the trial court abused its discretion. Id. "`The trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner.'" Id. (quoting Krabseth v. Moore, 1997 ND 224, 6, 571 N.W.2d 146).
[ ] North Dakota Century Code § 32-34-01, provides for issuance of writs of mandamus:
The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.
[ ] The applicant for a writ of mandamus must demonstrate a clear legal right to the performance of the act and must have no other plain, speedy and adequate remedy in the ordinary course of law. Kadlec v. Greendale Tp. of Bd. Sup'rs, 1998 ND 165, 8, 583 N.W.2d 817. Whether or not Burley had a clear legal right to compel the Department to provide him a hearing is the key issue. Attempting to apply previous decisions of this Court, Burley argues he cured his initial refusal to submit to an Intoxilyzer test by requesting a blood test.
[ ] However, this precedent is irrelevant to whether or not Burley has a clear legal right to compel the Department to give him a hearing. Section 39-20-05(1), provides " efore issuing an order of suspension, revocation, or denial under section 39-20-04 or 39-20-04.1, the director shall afford that person an opportunity for a hearing if the person mails a request for the hearing to the director within ten days after the date of issuance of the temporary operator's permit." Under this statute, the duty to provide a hearing does not arise until a hearing has been timely requested.
[ ] In Lund v. North Dakota State Highway Dept., 403 N.W.2d 25, 27 (N.D. 1987), this Court affirmed the denial of Arlin Lund's application for a writ of mandamus because Lund did not timely request a hearing. We explained: "It is clear that Section 39-20-05 creates a legal duty, but it is equally clear that the duty is contingent on the action taken by the driver [Lund]. Before the Commissioner's duty to order a hearing arises, the driver must have timely requested a hearing." Id.
[ ] Because Burley failed to timely request a hearing, he had no legal right to a hearing. The writ of mandamus should not have been issued as a matter of law.
[ ] We reverse.
Page 1 2 North Dakota DUI Attorneys
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