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Rodarte v. State6/22/1995
1. The Department appeals from the district court's reversal of the Department's revocation of Petitioner's drivers license. The only issue raised on appeal is the proper interpretation of NMSA 1978, Section 66-8-112(B) and (C) (Repl. Pamp. 1994). The Department contends that the thirty-day time limit in the phrase " date for the hearing shall be set by the department, if practical, within thirty days" should be interpreted as directory, not mandatory. Petitioner argues that the thirty-day limit is mandatory, and that the district court did not err because the Department failed to move for a continuance beyond the thirty days, necessitating a reversal of the revocation. Because we agree with the Department, we reverse the district court's order reinstating Petitioner's driving privileges.
2. Petitioner's driving privileges were revoked incident to his arrest for driving while intoxicated on February 3, 1994. Pursuant to Section 66-8-112(B), within ten days of the revocation, Petitioner requested an administrative hearing to review the revocation. The Department set the hearing for April 20, 1994. No continuances of the hearing were sought by either party. The hearing officer, after hearing testimony and argument, sustained the revocation. Petitioner appealed to the district court, which initially found that Section 66-8-112(B) did not require the Department to hold the hearing within thirty days and affirmed the decision of the hearing officer. Upon Petitioner's motion for reconsideration, however, the district court issued a final order that stated that the Department failed to comply with Section 66-8-112(B) and reversed the decision of the hearing officer.
3. In relevant part, Section 66-8-112 provides:
B. . . . A date for the hearing shall be set by the department, if practical, within thirty days after receipt of notice of revocation. . . .
C. The department may postpone or continue any hearing on its own motion or upon application from the person and for good cause shown for a period not to exceed ninety days from the date of notice of revocation . . . .
At issue in this case is the correct interpretation of the interplay between the direction that the hearing be set within thirty days and the provision for continuances of hearings on the Department's own motion up to the ninety-day limit.
4. Petitioner is correct in asserting that the word "shall" is mandatory in a statute. NMSA 1978, § 12-2-2(I) (Repl. Pamp. 1988). Petitioner argues that the Section 66-8-112(B)'s words "if practical" only have meaning when read together with the provision for continuances in Section 66-8-112(C). Accordingly, Petitioner argues, the only way the Department is allowed to schedule a hearing beyond thirty days from the notice of revocation is if the Department moves to continue the hearing. We are not persuaded by this strained interpretation of the statute.
5. Petitioner attempts to distinguish ), cert. denied , 114 N.M. 123, 835 P.2d 839 (1992), a case in which we held that statutory language similar to that in the instant case was directory, not mandatory. Only two of the dissimilarities between the statute at issue in Littlefield and the one in the instant case merit Discussion. It is true that, in Littlefield , the statute at issue did not have a ninety-day limit in which to hold a hearing or provisions for continuances. Instead, the Motor Vehicle Division was required to afford a hearing to drivers whose licenses had been suspended as early as possible within twenty days. In that case,
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