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Aamodt v. North Dakota Dep't of Transportation6/30/2004
found mandatory, because the report and notice form is not required to be issued to the arrestee.
[ ] We conclude the statutory provision in question is more like the provision in Bosch than the provisions in Schwind and Samdahl. If the statutory provisions in Schwind and Samdahl are not met, the Department's authority is not affected by its not taking the license prior to the hearing or by its not issuing a temporary license. These details are not important in determining whether a driver's license can be suspended, and they are not considered by the Department when making its determination.
[ ] The statutory provision in Bosch, on the other hand, is a predicate to suspending a person's driving privileges, and it is important to the Department that the provision be followed. When determining whether to suspend a person's driving privileges, the Department must determine whether there were reasonable grounds to believe the person was driving or was in actual physical control of a vehicle while under the influence of alcohol, whether the person was properly tested, and whether the person's blood-alcohol level exceeded the legal limit. See N.D.C.C. § 39-20-05. The statutory provision requiring reasonable grounds, like the statutory provision in Bosch concerning test results, involves requirements that are material to the Department's decision to suspend a person's driving privileges and are predicates to the Department's acting.
[ ] Unlike in Schwind and Samdahl, requiring compliance by the officer and the Department in this case does not produce an absurd result in light of the legislature's intent. Although section 39-20-03.1 was enacted, in part, to help prevent those who had violated the statute from continuing to drive, keeping drunk drivers off the roads was not the only concern. The legislature was concerned that the law not be "slanted too much toward the [agency's] convenience," Samdahl v. N.D. Department of Transportation Director, 518 N.W.2d 714, 718 (N.D. 1994) (Levine, J., dissenting) (quoting Report of the House Judiciary Committee on S.B. 2373 (March 15, 1983)), and that the officer be able to articulate probable cause before taking a license. The legislature heard testimony about the concern that this bill would punish those who did not need to be punished. Hearing on S.B. 2373 before the House Judiciary Committee, 48th N.D. Legis. Sess. (March 2, 1983) (testimony of Orell Schmitz of the North Dakota Trial Lawyers Association).
[ ] Driving privileges cannot be taken away without some basis. Requiring reasonable grounds before taking away a person's driving privileges ensures the law is not too slanted in favor of the Department and protects those who should not be punished. Without a finding of probable cause, there is no basis for taking away a person's driving privileges. Aamodt was entitled to know what the officer was relying on.
[ ] We conclude the statutory provision at issue is a basic and mandatory provision and therefore the Department had no authority to suspend Aamodt's driving privileges.
IV.
[ ] The Department also argues the hearing officer did not err in finding probable cause existed to arrest Aamodt for being in actual physical control of a moving vehicle while under the influence of alcohol. Because we conclude the statutory provision in section 39-20-03.1(3) is a basic and mandatory provision and the Department had no authority to suspend Aamodt's driving privileges, we do not need to consider this argument.
V.
[ ] We affirm the district court's decision finding the Department had no authority to suspend Aamodt's driving privileges.
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