Schlittenhart v. N.D. Dep't of Transportation, 2015 ND 179

Background

On Sept. 29, 2013 a highway patrol officer arrested Teresa Schlittenhart for DUI and administered a post-arrest chemical blood test (.086). A temporary operator’s permit and test report were mailed Oct. 15, 2013. Schlittenhart timely requested an administrative hearing.
The hearing was scheduled within the statutory 30-day window; it was set for Nov. 14 because both the trooper and Schlittenhart could appear in person (the trooper was unavailable on Nov. 13).
Schlittenhart’s attorney notified the hearing officer he would be out of town for a medical procedure and was permitted to appear telephonically or associate local counsel to appear in person.
At the Nov. 14 hearing the trooper and Schlittenhart were present in person; counsel participated by phone but was disconnected during cross-examination about 46 minutes into the hearing.
The hearing officer attempted to reconnect, left voicemail, gave the attorney until 9:00 a.m. to call back, offered the driver opportunities to testify or continue cross‑examination (the driver declined), admitted the Department’s report, left the record open until 5:00 p.m., and later suspended Schlittenhart’s license for 91 days.
The district court reversed and remanded for a new hearing, holding the hearing officer denied due process by continuing after counsel’s disconnection. The Department appealed and this Court reinstated the suspension.

Issues

Issue	Schlittenhart's Argument	DOT's Argument	Held
Whether scheduling the hearing for Nov. 14 was improper because it conflicted with counsel’s surgery	Hearing officer manipulated scheduling to force telephonic representation and denied meaningful representation	Hearing officer acted within discretion to meet statutory 30‑day deadline and chose a date when both trooper and driver could appear in person; offered telephonic or substituted counsel options	No abuse of discretion; date permissible to satisfy timing and in-person witness availability
Whether the Department may require or permit counsel to appear telephonically	Telephonic representation deprived Schlittenhart of meaningful participation	Telephonic appearance by counsel is allowed; statutory in‑person requirement applies to driver and witnesses, not counsel	Telephonic counsel is permissible; Landsiedel/Wolfer do not require counsel’s physical presence
Whether continuing the hearing after counsel disconnected violated due process	Continuing without counsel prejudiced Schlittenhart and denied a fair hearing	Hearing officer made reasonable attempts to reconnect, offered alternatives, left record open, and Schlittenhart failed to show prejudice or what additional testimony would have shown	No due process violation; proceeding was fundamentally fair and not prejudicial
Whether the district court’s remand judgment was final and appealable	(Implicit) remand should allow review	Judgment remanding for a new hearing is final and appealable under prior precedent	Judgment was final and appealable, but Court reversed on merits and reinstated suspension

Key Cases Cited

Siewert v. N.D. Workers Comp. Bur., 554 N.W.2d 465 (N.D. 1996) (appealability of administrative‑to‑district‑court rulings)
Rist v. N.D. Dep’t of Transp., 665 N.W.2d 45 (N.D. 2003) (administrative appeals to this Court require a judgment in the record)
Landsiedel v. Dir., N.D. Dep’t of Transp., 774 N.W.2d 645 (N.D. 2009) (statutory scheme requires in‑person testimony for witnesses; Department cannot unilaterally convert hearings to telephonic for witnesses)
Wolfer v. N.D. Dep’t of Transp., 780 N.W.2d 645 (N.D. 2010) (dangers of telephonic witness testimony and limits on unilateral telephonic testimony for witnesses)
Baesler v. N.D. Dep’t of Transp., 812 N.W.2d 434 (N.D. 2012) (broad discretion of hearing officers to schedule and manage administrative proceedings)
Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D. 1979) (standard of review: agency findings upheld if a reasoning mind could so conclude)