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Morrell v. North Dakota Department of Transportation7/15/1999
day suspension period was an error. We agree with the district court that the notice did not fairly alert Morrell his prior conviction would be considered for the purpose of enhancing the suspension period.
III.
A determination the administrative hearing notice was constitutionally deficient does not end our inquiry. Generally, there is no right to redress if a party cannot show prejudice resulting from an allegedly defective notice. Wahl v. Morton County Social Services, 1998 ND 48, &P; 8, 574 N.W.2d 859; see also Carlson v. Job Service North Dakota, 548 N.W.2d 389, 395 (N.D. 1996) (stating a person is denied due process or a fair hearing when the defects in the hearing process might lead to a denial of Justice).
The Department contends that, even if the notice was inadequate, Morrell has failed to demonstrate any harm suffered as a result of the deficient notice. The Department argues the insufficient notice is not a prejudicial defect because several procedural devices were available to Morrell. In raising this argument, the Department attempts to place the burden on Morrell to request a continuance.
Morrell was prejudiced by the Department's insufficient notice. As we emphasized in Saakian, at &P; 11, an individual needs to be adequately informed in advance of the issues to be addressed at a hearing so the person can be prepared to present evidence and arguments. In the present case, there are several issues relevant to the enhancement of the suspension period for a second DUI offense for which Morrell did not have a meaningful opportunity to prepare arguments. See, e.g., State v. Orr, 375 N.W.2d 171, 178-79 (N.D. 1985) (finding an individual may not receive an enhanced penalty for a second DUI offense where first DUI conviction resulted from an uncounseled guilty plea without evidence of waiver of counsel); N.D.C.C. &S; 39-20-04.1(1)(b) (requiring an individual be convicted of violating section 39-08-01, N.D.C.C., or an equivalent ordinance before an enhanced penalty for second DUI offense is applicable). Morrell was not informed until the hearing, the issue to be addressed was the enhancement of the penalty. Therefore, without a continuance, Morrell did not have an opportunity to prepare and present evidence and arguments related to the 365-day suspension period.
It is well-settled that the moving party, here the Department, has the burden of proof in an administrative hearing. See Kobilansky, 358 N.W.2d at 790. Because it was the hearing officer who sent the improper notice to Morrell, if a continuance were to be requested, it was the Department or the hearing officer who should have advanced the possibility of a continuance to allow Morrell to be properly notified of the 365-day suspension and also allow him an opportunity to present evidence and arguments related to the enhanced penalty. See N.D.C.C. &S;&S; 39-20-04.1, 39-20-05 and N.D.C.C. &S; 28-32-19(4). Cf. State v. Northern Pacific Railway Company, 75 N.W.2d 129 (N.D. 1956) (holding Public Service Commission must offer railway company a written complaint or specification of issues and an opportunity to present evidence); State v. Gahner, 413 N.W.2d 359 (N.D. 1987) (holding where complaint against defendant did not allege a more serious offense or set out prior DUI convictions, trial court erred in enhancing penalty even though defendant knew about his two prior convictions and statute providing for enhanced penalty).
The district court's order is affirmed.
Gerald W. VandeWalle, C.J.
Carol Ronning Kapsner
Mary Muehlen Maring
William A. Neumann
Norman J. Backes, D.J.
Page 1 2 3 4 North Dakota DUI Attorneys
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