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Braham v. District Court12/31/1987
By the Court, Young, J.: On August 10, 1985, Thomas Braham was arrested for driving under the influence on the Lamoille Highway near Elko, Nevada. He refused to take a breath or blood test. At that time, Braham was given a notice of revocation of his driving privilege, which he appealed. The hearing officer told Braham that he would give a written decision in a few days. The notice of revocation was sent to Braham via certified mail and arrived in the Elko County post office on or before April 29, 1986. A return receipt notice was allegedly placed in Braham's mailbox on April 29, 1986, and May 5, 1986. The letter was not picked up, and the post office returned the letter to the Department of Motor Vehicles (DMV) on May 14, 1986. Braham and his wife testified that they did not receive the notice. On May 7, 1986, Braham was stopped and informed that his driver's license had been revoked and that he should not drive any further after reaching work. Braham was charged with driving with a revoked driver's license. He was found guilty in justice court and sentenced to serve 30 days in jail, the mandatory minimum sentence imposed for violation of NRS 483.560. The district court affirmed. The district court found that the notice requirement of NRS 484.385 was met when the DMV deposited the notice of revocation in the mail.
A petition for a writ of certiorari may be granted at the discretion of the court. Schumacher v. District Court, 77 Nev. 408, 365 P.2d 646 (1961). We find that Braham has no adequate remedy at law and that Braham's petition for a writ of certiorari is appropriately before this court.
[103 Nev. 644, Page 646]
NRS 24.020. See Zamarripa v. District Court, 103 Nev. 638, 747 P.2d 1386 (1987).
Braham contends, among other things, that the revocation of his license by the DMV did not become effective prior to his arrest on May 7, 1986. Consequently, he contends that his arrest was premature. We agree. NRS 484.385(3) provides:
The department, upon receipt of such a certificate for which an order of revocation has not been served, after examining the certificate and copy of the result of the chemical test, if any, and finding that revocation is proper, shall issue an order revoking the person's license, permit or privilege to drive by mailing the order to the person at his last known address. The order must indicate the grounds for the revocation and the period during which the person is not eligible for a license, permit or privilege to drive and state that the person has a right to administrative and judicial review of the revocation and to have a temporary license. The order of revocation becomes effective 5 days after mailing.
We also note that NRS 178.482 provides:
Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper upon him and the notice or other paper is served upon him by mail, 3 days shall be added to the prescribed period.
We find no expression of legislative intent leading us to construe NRS 484.385(3) as insulated from the general provision of NRS 178.482. Consequently, we hold that NRS 484.385(3), in conjunction with NRS 178.482, provides that if the order of revocation is served by mail, the revocation becomes effective eight days after mailing. Cf. Hardin v. Jones, 102 Nev. 469, 727 P.2d 551 (1986) (although NRS 612.495(1) requires filing of administrative appeal within ten days from the date of mailing of the notice of determination, NRCP 6(e) applies to provide an additional three days because the notice of the agency's determination was mailed). The postmark on the order of revocation sent to Braham was illegib
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