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Dettler v. Sprynczynatyk3/23/2004
nd reinstate the hearing officer's suspension of Dettler's driving privileges for ninety-one days.
[ ] Dale V. Sandstrom
William A. Neumann
William F. Hodny, S.J.
Mary Muehlen Maring
[ ] William F. Hodny, Surrogate Judge, sitting in place of Kapsner, J., disqualified.
VandeWalle, Chief Justice, concurring specially.
[ ] Jason Dettler argues on appeal that he should not be held to the requirements of specificity of the issues in N.D.C.C. § 28-32-42(4), as we interpreted that statute in Vetter v. N.D. Workers Comp. Bureau, 554 N.W.2d 451 (N.D. 1996), because the ordinary time for appeal is thirty days under N.D.C.C. § 28-32-42(1), whereas under N.D.C.C. § 39-20-06, the statute governing Dettler's appeal, he must file the appeal within seven days. Although one might expect a person taking an appeal to have some idea of the errors justifying the appeal, I understand the realities are that appeals are taken to protect the right to appeal and the reasons for the appeal in some instances will be determined later. For that reason, Dettler's argument has a certain allure. But that is a matter for the Legislature which enacted the statutes to rectify, unless the shortened period of time in which to appeal raises some constitutional argument not readily discernable nor, more importantly, argued here.
[ ] Nevertheless, in the application of the specificity requirements, I might apply a less stringent standard to appeals under N.D.C.C. § 39-20-06 because of the short period of time the statute allows for the appeal. But here, the specifications read:
1. The Hearing Officer made findings of fact not supported by the testimony;
2. The Hearing Officer erred in concluding the Intoxilyzer test was fairly administered;
3. The Hearing Officer erred in concluding the Intoxilyzer test results were properly obtained;
4. The Hearing Officer's Decision is not in accordance with the law and is in violation of the Appellant's constitutional and statutory rights.
5. The Hearing Officer erred in concluding the chemical test results demonstrated an alcohol concentration of at least ten one-hundredths of one percent by weight within two hours of driving.
6. The Hearing Officer impermissibly shifted the burden of persuasion and proof to the Appellant.
[ ] I am unable to determine in reading these specifications of error, any reasons why the specified errors were errors. Without some explanation the specifications of error do not even substantially comply with the statutory requirement for specifications of error as exemplified in Vetter.
[ ] I concur in the result reached by the majority opinion.
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