Schock v. North Dakota Department of Transportation
815 N.W.2d 255
| N.D. | 2012Background
- Paul Schock’s license suspension for DUI was upheld after an administrative hearing determined he had a BAC of 0.184% from a breath test within two hours of driving.
- Stopped for a traffic violation at 12:54 a.m., Schock was arrested around 1:19 a.m.; the Intoxilyzer 8000 test began at 1:56 a.m. with samples at 3:01 and 3:07 a.m.
- The department issued a temporary permit and sent a notice of suspension to Schock prior to a formal hearing on the intended sanction.
- Schock challenged the administrative record, objecting to the breath-test exhibits and asserting lack of proof that the test was administered within two hours or that daylight saving time mattered.
- The hearing officer found, and the district court affirmed, that daylight saving time affected the timing and that the breath test occurred within two hours, supporting the suspension.
- Schock sought attorney’s fees under ND Century Code § 28-32-50(1), but the court denied them, noting he was not the prevailing party.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the breath test administered within two hours of Schock driving? | Schock argues no evidence showed administration within two hours. | Schock contends the Department properly used daylight saving time to show timing within two hours. | Yes; timing supported within two hours. |
| Did daylight saving time affect the timing and require judicial notice to prove timing? | Schock argues DST not properly evidenced; the record should be limited to hearing exhibits. | Department relied on DST adjustment and official notice to infer timing. | DST may be judicially noticed; timing supported by record and inference. |
| Did the hearing officer’s failure to immediately deliver the decision deprive the Department of authority to suspend? | Schock asserts non-immediate delivery defeated jurisdiction. | Timing of delivery is not a basic mandatory prerequisite to suspension. | No; non-basic provision not jurisdictional, though noncompliance occurred. |
| Should Schock recover attorney’s fees under NDCC § 28-32-50(1)? | Schock argues substantial justification was lacking. | He was not the prevailing party, and agency conduct was not without substantial justification. | No; fees denied. |
Key Cases Cited
- Lamb v. Moore, 539 N.W.2d 862 (N.D. 1995) (review of agency record; defer to credibility; weigh evidence on record)
- Aamodt v. North Dakota Department of Transportation, 2004 ND 134 (N.D. 2004) (threshold to suspend; basic/mandatory provisions; admissibility)
- Schwind v. North Dakota Department of Transportation, 462 N.W.2d 147 (N.D. 1990) (compliance details; jurisdictional significance of provisions)
- Samdahl v. North Dakota Department of Transportation, 518 N.W.2d 714 (N.D. 1994) (not all statutory provisions are mandatory; prejudice considerations)
- Erickson v. North Dakota Department of Transportation, 507 N.W.2d 537 (N.D. 1993) (authority to suspend depends on statutory compliance; certain omissions not fatal)
- Landsiedel v. North Dakota Department of Transportation, 2009 ND 196 (N.D. 2009) (admonition against prejudicial conduct; immediate delivery requirement not always fatal)