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Morrell v. North Dakota Department of Transportation7/15/1999
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail Hagerty, Judge.
AFFIRMED.
Morrell v. ND Dept. of Transportation No. 990024
VandeWalle, Chief Justice.
The North Dakota Department of Transportation (Department) appealed from an order of the district court affirming the Department's decision suspending Raymond S. Morrell's driving privileges, but limiting the suspension to 91 days. We affirm.
I.
Morrell was arrested for driving under the influence of alcohol. The results of an Intoxilyzer test indicated Morrell had a blood alcohol concentration of .15 percent by weight. A temporary operator's permit was issued to Morrell on or about June 25, 1998, and a Report and Notice were mailed to the Department on June 26, 1998. Morrell timely requested a hearing.
July 8, 1998, the Department mailed Morrell a "Notice of Administrative Hearing Before the NDDOT Director." This Notice stated " he administrative hearing regarding the suspension of the petitioner's driving privileges for 91 days will be held on 07/22/1998 at 3 p.m. . . . ." The hearing officer also sent a Notice of Information/Documents to Morrell's counsel. The Notice stated that attached were a "driving record abstract, central record, and record of prior alcohol-related offense(s), if any" and informed Morrell's counsel these documents would be offered into evidence at the hearing. Morrell's driving-record abstract and "Central Record" were attached to the Notice. These records indicated Morrell had previously been convicted of Driving Under the Influence (DUI) in 1996 and his license suspended for 91 days.
An administrative hearing was held July 22, 1998. During the hearing, Morrell objected to the admission of the driving-record abstract, "Central Record" and 1996 DUI citation and notice of conviction on the basis these records were irrelevant to a 91-day suspension. The hearing officer, after examining the notice, determined the notice wrongly stated the hearing was for a 91-day suspension. However, the hearing officer received the records in evidence concluding, "I find petitioner was adequately notified that the proposed suspension period is 365 days." Morrell's license was suspended for 365 days and he appealed the hearing officer's decision to the Burleigh County District Court.
The district court determined Morrell was not fairly notified of the possibility his prior DUI conviction would be considered for the purpose of lengthening the suspension. The court further concluded the hearing officer did not give Morrell an opportunity for a continuance to defend against the increased suspension. The district court affirmed the Department's decision to suspend Morrell's driving privileges, but reduced the suspension from 365 days to 91 days.
The Administrative Agencies Practices Act, N.D.C.C. ch. 28-32, governs the review of an administrative decision to suspend or revoke a driver's license. Dworshak v. Moore, 1998 ND 172, &P; 6, 583 N.W.2d 799. When reviewing a driver's license suspension, we review the agency's decision, not the district court's decision. Id. We affirm the agency's decision unless:
"1) a preponderance of the evidence does not support the agency's findings; 2) the agency's findings of fact do not support its Conclusions of law and its decision; 3) the agency's decision violates the constitutional rights of the appellant; 4) the agency did not comply with the Administrative Agencies Practice Act in its proceedings; 5) the agency's rules or procedures have not afforded the appellant a fair hearing; or 6) the agency's decision is
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