930 N.W.2d 84
N.D.2019Background
- June 2018: Benjamin French arrested for DUI; Intoxilyzer showed BAC over legal limit; Department sought administrative suspension.
- Department hearing (July 2018): hearing officer found French's certified NDDOT driving record showed a one-year revocation following a July 24, 2011 chemical-test refusal after an administrative hearing, and imposed a 365-day suspension under N.D.C.C. § 39-20-04.1(1)(c).
- Hearing officer relied on the Department's regularly kept driving record and his experience construing the record; French did not testify or present evidence at the administrative hearing to rebut the record.
- French appealed to district court, which reversed and limited the suspension to 91 days, finding the driving record notation was insufficient to show a prior suspension under chapter 39-20 and criticizing the hearing officer’s reliance on personal interpretation; the court also awarded attorney fees.
- The Department appealed to the Supreme Court, arguing the driving record’s notations are prima facie evidence and the hearing officer properly inferred a prior chapter 39-20 suspension; it also argued the attorney-fee award was improper because the Department acted with substantial justification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Department driving record notation was sufficient to prove a prior suspension under N.D.C.C. ch. 39-20 for enhancement | French: the driving-record entries are ambiguous, do not show a DUI conviction or that the 2011 action was under ch. 39-20, and the hearing officer improperly relied on personal interpretation | Dept: the certified, regularly kept driving record and its notations are prima facie evidence; hearing officer may construe the notation as "readily ascertainable" and French failed to rebut it | Held: The notation constituted prima facie evidence of a prior ch. 39-20 suspension; hearing officer’s inference was reasonable and district court erred in disregarding it |
| Whether the appropriate suspension period is 365 days (enhanced) or 91 days (first offense) | French: without clear proof the prior revocation was under ch. 39-20, enhancement to 365 days is not authorized | Dept: because the record shows a prior one-year revocation for refusal after an NDDOT hearing, the 365-day enhancement applies under § 39-20-04.1(1)(c) | Held: 365-day suspension reinstated; record supports enhancement |
| Whether the hearing officer improperly relied on personal knowledge/expertise not in the record | French: the officer impermissibly relied on his own experience to interpret ambiguous notations, violating Ertelt | Dept: the hearing officer, as a Department designee, may interpret Department records that are "readily ascertainable" to the director | Held: The officer’s interpretation was permissible because the driving record is a regularly kept Department record and its notations were readily ascertainable; no Ertelt error |
| Whether the district court properly awarded attorney fees under N.D.C.C. § 28-32-50(1) | French: prevailing party; agency action lacked substantial justification | Dept: agency action was substantially justified because the hearing officer’s decision was supported by the record | Held: Fee award reversed; Department had substantial justification, so award abused discretion |
Key Cases Cited
- Opp v. Dir., N.D. Dep't of Transp., 892 N.W.2d 891 (2017) (standard of review for Department suspension decisions)
- Isaak v. Sprynczynatyk, 642 N.W.2d 860 (2002) (Department must keep driving records; records are regularly kept)
- Workforce Safety & Ins. v. Auck, 785 N.W.2d 186 (2010) (deference limits for independent ALJs versus agency specialists)
- Ertelt v. N.D. Dep't of Transp., 491 N.W.2d 736 (1992) (prohibition on relying on personal knowledge outside the record for factual findings)
- Nelson v. Dir., N.D. Dep't of Transp., 562 N.W.2d 562 (1997) (hearing officers may draw reasonable inferences based on common sense and experience)
- Drayton v. Workforce Safety & Ins., 756 N.W.2d 320 (2008) (statutory standard for awarding attorney fees when agency acted without substantial justification)