Masset v. Director, North Dakota Department of Transportation
2010 ND 211
| N.D. | 2010Background
- Masset was arrested for DUI on July 4, 2009, and the Department suspended his license for 180 days after a hearing on August 12, 2009.
- Masset requested a reconsideration due to discrepancies in the Specimen Submitter’s Checklists; a reconsideration hearing was held on September 16, 2009.
- The hearing recording failed to capture the first ~10 minutes of Officer Bohn’s direct testimony; the transcript included only a summary of that missing testimony.
- The district court affirmed the suspension; Masset challenged the Department’s recording and the admission of the blood test results.
- The Court reverses and remands for the Department to recreate the official record required by law, citing missing testimony as the critical defect.
- On remand, the Department should recreate the record using Officer Bohn’s testimony to replace the lost evidence, as allowed by the hearing officer’s discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the missing portion of the hearing transcript violated ch. 28-32 requirements | Masset: incomplete record violates 28-32-36/44 and prejudices appeal | DOT: error harmless; findings supported by record | Remand for creation of a correct record |
| Whether the department must recreate the record on remand due to the missing testimony | Masset: missing direct testimony prevents proper appellate review | DOT: no prejudice shown, record supported | Remand to recreate the record using Officer Bohn’s testimony |
Key Cases Cited
- State v. Simpfenderfer, 120 N.W.2d 595 (ND 1963) (remand for production of a correct record when an administrative hearing record is incomplete)
- Johnson v. N.D. Workers’ Comp. Bureau, 539 N.W.2d 295 (ND 1995) (statutory violations deemed harmless absent prejudice)
- Larson v. N.D. Dept. of Transp., 564 N.W.2d 628 (ND 1997) (prejudice required to reverse; missing inaudible word not per se reversible)
- Rennich v. N.D. Dep’t of Human Servs., 756 N.W.2d 182 (ND 2008) (limited appellate review of agency decisions under ch. 28-32)
- Zimmerman v. N.D. Workforce Safety and Ins. Fund, 779 N.W.2d 372 (ND 2010) (standard of review under administrative agency appeal)