May v. SprynczynatykMay v. Sprynczynatyk
[¶ 1] Daryl May has appealed from a district court judgment affirming a hearing officer’s decision to suspend May’s driver’s license for two years. We affirm, concluding that the failure of the Department of Transportation (“the Department”) to file a transcript of the administrative hearing within twenty days did not require summary reversal of the hearing officer’s decision and that May failed to raise a proper objection to admission of the Intoxilyzer test results.
I
[¶ 2] In the early morning hours of March 6, 2004, a Fargo police officer noticed May’s vehicle being driven in an erratic manner. Upon stopping the vehicle, the officer noticed that May’s eyes were watery and there was a strong odor of alcoholic beverages. May failed field sobriety tests and was arrested for driving under the influence. He was taken to the Cass County Jail, where an Intoxilyzer test showed a blood alcohol concentration of .19 percent.
[¶ 3] May requested an administrative hearing, which was held on March 31, 2004. The hearing officer determined the stop of May’s vehicle was justified and the Intoxilyzer test had been fairly administered in accordance with the State Toxicologist’s approved method. The hearing officer ordered that May’s license be suspended for two years. May appealed to the district court, which affirmed the decision of the hearing officer.
II
[¶ 4] Judicial review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32.
Larsen v. North Dakota Dep’t of Transp.,
1. The order is not in accordance with the law.
2. The order is in violation 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 preponderance 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 sufficiently 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 agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
On an appeal from a district court’s ruling on an administrative appeal, this Court reviews the agency order in the same manner.
[¶ 5] This Court exercises a limited review in appeals involving driver’s license suspensions and revocations.
Aamodt v. North Dakota Dep’t of Transp.,
Ill
[¶ 6] May contends that summary reversal of his license suspension is mandated because the Department failed to file a transcript of the administrative proceedings within twenty days of receipt of his notice of appeal.
[¶ 7] Section 39-20-06, N.D.C.C., governs judicial review of a decision to suspend, revoke, or deny a driver’s license, and requires the driver to serve and file a notice of appeal and specifications of error within seven days after the date of the hearing. The statute further provides:
Within twenty days after receipt of the notice of appeal, the director or the hearing officer who rendered the decision shall file in the office of the clerk of court to which the appeal is taken a certified transcript of the testimony and all other proceedings.
[¶ 8] May’s administrative hearing was held on March 31, 2004. May’s notice of appeal and specifications of error were mailed to the Department on April 5, 2004, and filed with the district court on April 6, 2004. The Department mailed the transcript of the administrative hearing on April 29, 2004, and it was filed in the office of the clerk of district court on April 30, 2004. May argues that, even allowing three days for service by mail under
A
[¶9] May contends that, the. Department's failure to strictly comply with the requirements of
[¶ 10] In
Rudolph,
the Department filed the transcript within twenty days as required by
[¶ 11] On appeal to this Court, Rudolph argued the untimely filing of the complete transcript was jurisdictional and mandated reversal of the decision suspending his license. The Department argued the twenty-day requirement is not jurisdictional and Rudolph had “suffered no prejudice from the slight delay caused by the ‘clerical’ error.”
Rudolph,
[¶ 12] In
Dettler,
this Court addressed a driver’s failure to serve and file sufficiently particular specifications of error as required by
[¶ 13] May argues that
Dettler
requires strict compliance with all provisions of
[¶ 14] May has misread our holding in
Dettler.
We did not say that summary reversal was required if a party failed to strictly comply with all of the requirements in
[¶ 15] We conclude that Dettler does not require automatic summary dismissal of a decision suspending a driver’s license when the Department fails to file the transcript within the twenty-day period. Under Rudolph, the twenty-day filing period is not jurisdictional. Because May has failed to allege or prove prejudice caused by the two-day delay in filing the transcript, we conclude the Department’s failure to file the transcript within twenty days does not mandate reversal of the decision suspending May’s license. 1
B
[¶ 16] May argues that, even if he was not prejudiced by the Department’s delay in filing the transcript, reversal may still be warranted if the Department’s conduct constituted a systemic disregard of the law. May contends the district court should have granted his request to conduct discovery to determine whether the Department was systematically failing to comply with the twenty-day deadline under
[f 17] When a governmental agency systemically disregards the requirements of the law, a court may reverse a decision in favor of the government to prophylactically ensure that the government acts consistently and predictably in accordance with the law.
Kouba v. State,
[¶ 18] The record in this case does not establish a persistent pattern of improper conduct by the Department, but merely a single violation. May argues, however, that the district court erred in denying his request to conduct discovery to seek evidence of additional instances where the Department failed to timely file the transcript of the administrative hearing. In support of his request, May averred in his brief that he was aware of one other instance where the Department had failed to file a transcript within twenty days of the hearing.
[¶ 19] Discovery decisions are addressed to the trial court’s discretion and will not be reversed on appeal absent an abuse of discretion.
Fast v. Mayer,
IV
[¶ 20] May contends the hearing officer erred in admitting into evidence the Intox-ilyzer test results. May claims there was a lack of foundation for admission of the test results because the Department failed to establish the chemical test was fairly administered. May bases his claim of lack of foundation on his assertions that there was a facial irregularity on the printed test record and that the Department failed to establish compliance with the State Toxicologist’s approved method because it did not show the standard solution was less than 45 days old and had been used fewer than 50 times.
A
[¶ 21] During administration of the In-toxilyzer test, the certified chemical test operator types in information on an attached keyboard. The Intoxilyzer will at times prompt the operator for a response. In response to one of these prompts, the operator in this case apparently typed “N” rather than “Y” when asked whether the standard solution test had been performed. The printed Intoxilyzer test report shows that the operator responded “N” to this prompt. May now argues there was insufficient foundation to admit the test results because of this facial irregularity.
[¶ 22] The Department argues that May failed to properly object to admission of this evidence and therefore waived any objection he had to its admission. When the printed Intoxilyzer test results, denominated Exhibit 1C, and several other documents were offered into evidence, the hearing officer asked May’s counsel if there were any objections. May’s counsel replied:
I objection [sic] to 1A, B, C second page of 1C. No objection to ID, which apparently consists of two pages. Object to Exhibit IE, and I’ll lay the foundation for those objections through cross-examination. No objection to Exhibit 3, 4, 6, 7, 8, 10. I object to Exhibit 12 on relevance.
A few moments later, during cross-examination of the arresting officer, May’s counsel questioned whether a certification page for one of the exhibits was a photocopy and whether the signature was made with a stamp rather than an original signature. May’s counsel then stated:
I will reserve my objections. I will have certification objections. I don’t think that they’re going to be this dispositive, if I can address them in closing?
[¶ 23] May’s counsel did not make a specific objection to lack of foundation for admission of the Intoxilyzer test result. Nor did May’s counsel, during cross-examination of any of the witnesses, ask about the “N” appearing on the Intoxilyzer test results. Counsel waited until the parties had rested and the evidentiary stage of the hearing had been closed before he first raised the issue of the “N” on the Intoxi-lyzer test result during closing arguments. At that point, counsel argued that the “N” was a facial ambiguity which was contrary to the approved method, and therefoi'e there was no showing of fair administration of the chemical test.
[¶ 24] The admissibility of evidence at an adjudicative hearing before an administrative agency is governed by the North Dakota Rules of Evidence, unless application of the Rules is expressly waived by the hearing officer.
[¶ 25] Rule 103(a)(1), N.D.R.Ev., requires a party to make a specific objection to proffered evidence:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context ....
In applying N.D.R.Ev. 103(a)(1), this Court has cautioned:
A touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court, so the trial court could intelligently rule on it.... A party must object at the time the alleged error occurs, so the trial court may take appropriate action if possible to remedy any prejudice that may have resulted. Failure to object acts as a waiver of the claim of error.
State v. Hayek,
[¶ 26] A party must make a specific objection to evidence at the time it is offered for admission into evidence to give the opposing party an opportunity to argue the objection and attempt to cure the defective foundation, and to give the trial court an opportunity to fully understand the objection and appropriately rule on it.
See Hayek,
at ¶ 10;
Lee,
at ¶ 10;
Western Nat’l Mut. Ins. Co. v. University of North Dakota,
The rule does not state the precise form which objections to evidence should take. However, at a minimum, the objection should give the opponent the basis of what is objectionable and bring the matter to the trial court’s attention so that the court can rule on the same. These requirements are not met when counsel merely objects to evidence as being immaterial or prejudicial and does not apprise the court of the constitutional nature of the objection to the evidence.
Accordingly, a party objecting to evidence on the basis of lack of foundation must advise the court and the opposing party precisely what foundation is lacking.
[¶ 28] May, relying upon
Tabert v. North Dakota Dep’t of Transp.,
[¶ 29] This Court concluded Tabert’s objections were specific enough to preserve those issues and he was not required to elaborate on them when asked by the hearing officer during closing arguments whether “he had anything more specific.”
Tabert,
[¶ 30]
Tabert
does not, as May contends, hold that the hearing officer has an affirmative duty to require more specification before ruling on an objection. Rather,
Tabert
merely indicates that a hearing officer has the authority to request elaboration before ruling on an objection, and the party objecting risks waiving his objection if he fails to do so. However, the initiative is placed upon the party, not the judge or hearing officer, to raise a proper objection.
Lee,
[¶ 31] We conclude May failed to timely raise a specific foundation objection to admission of the Intoxilyzer test results based upon the claim of facial irregularity, and thereby waived his objection to the proffered evidence. The hearing officer therefore did not abuse his discretion in admitting the Intoxilyzer test results.
B
[¶ 32] May contends the Intoxilyzer test results were improperly admitted because compliance with the State Toxicologist’s approved method was not shown. Specifically, May contends the hearing officer erroneously admitted a copy of Form 120-1 to establish compliance with the State Toxicologist’s approved method for conducting the Intoxilyzer test. May objected to the Form 120-1 at the hearing, arguing it constituted inadmissible hearsay.
[¶ 33] The Department introduced into evidence a Standard Solution Analytical Report, signed by the State Toxicologist, certifying the solution met the required concentration for a valid test. The Stan
[¶ 34] At the time this case was briefed and argued, this Court had not addressed whether the 45-day, 50-test limitations were part of the State Toxicologist’s approved method, so that compliance was a prerequisite to establishing fair administration of the test under
C
[¶ 35] We conclude the hearing officer did not abuse his discretion in admitting into evidence the Intoxilyzer test results. y
[¶ 36] We have considered the remaining issues and arguments raised by the parties and find they are either without merit or are unnecessary to our decision. The judgment affirming the hearing officer’s decision to suspend May’s license is affirmed.
Notes
. May has not sought any lesser sanction for the Department's failure
to
comply with