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Sitzer v. State6/7/2000
This is an appeal from an order of the district court upholding the Taxation and Revenue Department's (the Department) denial of a license revocation hearing. We affirm.
BACKGROUND
Appellant, Edward Sitzer, was arrested on September 8, 1998, for allegedly driving under the influence of alcohol. When Appellant refused to submit to a breath alcohol test, the arresting officer served Appellant with a notice of revocation. The notice was prepared on a multiple-copy, preprinted form which contains spaces for indicating the date of service. On the carbon-copy of the notice provided to Appellant, the spaces for indicating the date of service are not filled in. On the copy of the notice retained in the Department's records, the spaces for the date of service have been filled in, certifying that the notice was served on Appellant on September 8, 1998.
The notice included the following printed information:
REQUEST FOR HEARING: YOU MAY REQUEST A HEARING ON THIS REVOCATION. THE REQUEST MUST BE MADE IN WRITING WITHIN TEN (10) DAYS FROM DATE OF SERVICE OF THIS NOTICE. . . . HEARING REQUEST INSTRUCTIONS ARE EXPLAINED ON THE BACK SIDE OF THIS FORM.
REQUEST FOR HEARING
NOTE. The hearing on your license revocation is completely separate from your court hearing on the DWI criminal charge.
New Mexico law (Section 66-8-112 NMSA 1978) provides that IF YOU WISH TO CONTEST THE REVOCATION OF YOUR DRIVER'S LICENSE described on the front side of this form, the Motor Vehicle Division of the New Mexico Taxation and Revenue Department must RECEIVE your WRITTEN request for a hearing within TEN (10) DAYS FROM THE DATE THAT THIS NOTICE WAS SERVED ON YOU. The date this notice was served is stated under SERVICE on the front side. State law does not permit the department to consider an untimely request for a hearing.
NOTE. This hearing request must be accompanied by a payment of $25.00 or a sworn statement of indigency. (Form MVD-10813, available at any motor vehicle field office.)
On September 10, 1998, Appellant mailed a written hearing request to the Department. Appellant did not include payment of $25.00 or a statement of indigency. On October 8, 1998, the Department notified Appellant that his request for an administrative hearing had been denied " ased on the fact the request was not received with payment of $25.00 or a sworn Statement of Indigency (66-8-111.1B)."
Appellant filed a notice of appeal from the Department's ruling denying Appellant a hearing on the revocation of his driving privileges. In the district court, Appellant argued three grounds for reversal: (1) the failure of the arresting officer to fill in the date on the Notice of Revocation deprived the Department of jurisdiction; (2) in view of the failure of the arresting officer to fill in the date on the Notice of Revocation, Appellant was not given proper notice of the precise time frame in which to request a hearing; and (3) there is not statutory authority allowing the Department to deny a hearing for failure to accompany the hearing request with the $25.00 fee or statement of indigency.
In a brief order, the district court upheld the Department's denial of a hearing:
ORDER DISPOSING OF APPEAL
THIS MATTER having come before the Court on the appellants appeal pursuant to NMRA 1998, Rule 1-074 from a denial of a hearing on the revocation of his driver's license in New Mexico. . .[the Court] FINDS: (i) that the Appellant's argument that the Appellee had no jurisdiction is without merit; the notice of revocation was in substantial compliance with statutory requirements; (ii) that
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