[¶ 1] Jonathan Ike appeals a district court judgment affirming an administrative hearing officer’s decision to suspend his driving privileges for 91 days following his arrest for driving under the influence of intoxicаting liquor. We affirm.
I
[¶ 2] Officer Heather Christianson of the Williston Police Department arrested Ike for driving under the influence of intoxicating liquor. She transported Ike to Mercy Medical Cеnter in Williston to have a blood test taken. The blood test indicated Ike had an alcohol concentration of 0.16 percent by weight. Following the arrest, Ike requested an administrative hearing concerning the suspension or revocation of his operator’s license.
[¶ 3] At the hearing, the officer testified she did not personally issue the Report аnd Notice form to Ike, which contained the temporary operator’s permit. Although the officer signed the form indicating she personally issued the temporary operаtor’s permit, she testified she did not issue it, and she did not know who did. She testified she signed the form accidentally. The Report and Notice form indicated Ike was issued the temporary operator’s permit on May 24, 2007. Ike objected to the admittance of the Report and Notice form, arguing there was no evidence showing it was properly issued, but the hearing officer overruled the objection and admitted the form.
[¶ 4] Another exhibit offered by the Department at the hearing was Form 104, which contained Ike’s blood test results. The individual who administered the blood test wrote additional letters following “MLT” on Form 104. Ike argued the additional letters do not appear on the State Toxicologist’s “List of Approved Designations оf Individuals Medically Qualified to Draw Blood.” The initials MLT are an acronym for Medical Laboratory Technician, which is included in the State Toxicologist’s list. Ike argued Form 104 should not have been admitted into evidence, because fair administration of the blood test was not followed. The hearing officer overruled the objection, noting
[¶ 5] Ike timely requested an administrativе hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the Department of Transportation’s decision to the district court was propеrly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 39-20-06. Ike filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32^9.
II
[¶ 6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of a decision to suspend a driver’s license.
Kiecker v. North Dakota Dep’t of Transp.,
1. The order is not in accordance with the law.
2. The order is in violatiоn of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a prepondеrance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiеntly address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agenсy’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
N.D.C.C. § 28-32-46.
[¶ 7] On appeal, Ike argues the officer’s erroneоus certification of the Report and Notice form was a violation of a “basic and mandatory” requirement under N.D.C.C. § 39-20-03.1, thus depriving the Department of authority to proceed against him. When a driver is found to have an alcohol concentration level exceeding the per se limit, N.D.C.C. § 39-20-03.1(1) requires an officer to “immediately issue to that person a tеmporary operator’s permit if the person then has valid operating privileges.” In cases where blood or other chemical testing is performed by the state crime laboratory, N.D.C.C. § 39-20-03.1(2) requires that law enforcement “issue” a temporary operator’s permit upon receipt of laboratory results. “Service” is not required under either рrovision. It is apparent, however, that issuing the temporary permit was intended by the Legislature to satisfy due process requirements for notice to the driver.
See
N.D.C.C. § 39-20-03.1(1) (“temporary operator’s permit serves as the director’s official notification to the person of the director’s intent to revoke, suspend, or deny driving privileges in the
[¶ 8] We hold the issuance of a temporary operator’s permit to a driver is a basic and mandatory requirement of N.D.C.C. § 39-20-03.1. This conclusion is warranted because “[t]he temporary operator’s permit sеrves as the director’s official notification to the person of the director’s intent to revoke, suspend, or deny driving privileges in this state.” N.D.C.C. § 39-20-03.1(1) and (2). In addition, the driver’s time for requesting an administrative hearing begins when the temporary permit is issued. N.D.C.C. § 39-20-05(1) (hearing permitted if driver makes request within ten days after temporary operator’s permit is issued). Therefore, issuance of the temporary operator’s permit is vital to driver’s license revocation proceedings.
[¶ 9] In this case, the officer testified she did not issue Ike the Report and Notice form containing the temporary operator’s permit and was not aware of who did. The Report and Notice form, however, indicated Ike was issued the temporаry operator’s permit on May 24, 2007. Ike also requested a hearing on June 1, 2007. Ike’s request for a hearing occurred within ten days of the May 24, 2007, date indicated on the Report and Nоtice form. That Ike requested a hearing suggests he was issued the Report and Notice form. Additionally, there is no evidence he did not receive a temporary operаtor’s permit.
[¶ 10] Although the officer failed to follow the technical requirements of N.D.C.C. § 39-20-03.1, Ike failed to establish that the officer’s error was basic and mandatory to the Departmеnt’s authority to proceed against him. Nor did he show he was prejudiced by the officer’s failure to strictly comply with the statute.
[¶ 11] The evidence suggests the temporary operаtor’s permit was issued, and both Ike and the Department received it. There was no finding that Ike was prejudiced by the officer’s erroneous certification of the Report аnd Notice form. Ike requested an administrative hearing within ten days after the temporary operator’s permit was issued. He did not claim non-issuance of the temporary permit or lack of notice at the hearing. He only showed that the officer did not actually issue the temporary permit as she had certified. That showing is insufficient under the basic and mandatory requirement of N.D.C.C. § 39-20-03.1. The Department was not deprived of its authority to proceed against Ike and suspend his driving privileges.
Ill
[¶ 12] Ike argues the Department did not comply with N.D.C.C. § 39-20-03.1(3), which рrovides, in part: “The law enforcement officer, within five days of the issuance of the temporary operator’s permit, shall forward to the director a certified written report in the form required by the director and the person’s operator’s license taken under subsection 1 or 2.” Ike argues that because the record does not show the dаte he was issued the temporary operator’s permit, it is not known whether there was compliance with N.D.C.C. § 39-20-03.1(3).
[¶ 13] The Report and Notice form reflects Ike was issued the temporary operator’s permit on May 24, 2007. The Re
IV
[¶ 14] Ike’s remaining argument regarding fair administration of the blood test is without merit, and the district court’s judgment is affirmed.