Written by Attorney Scott Patrick Brand of Brudvik Law Office, P.C.
Dealing with a charge of Driving Under the Influence of Alcohol or Drugs (DUI) can be a very stressful and complicated time. This is especially true when you consider the two-pronged battle that will be fought. People facing a DUI charge don’t just have court appearances to worry about, they may also have to worry about a separate administrative hearing to determine whether their driving privileges should be suspended.
This administrative process begins when the arresting officer serves you with a Report and Notice. N.D. Cent. Code § 39-20-03.1. This document contains your Blood alcohol level and is usually served to you the night of arrest, after an intoxilyzer test. If you took a blood test then the Report and Notice would be sent to you via mail once the results of the Blood test are received by the police. Today, in most cases, the Report and Notice is served the night of arrest. It is very important to realize when the Report and Notice is served if you plan on having an administrative hearing for reasons discussed below.
When it comes to the administrative hearing, time is of the essence. Unless you, or your attorney formally requests a hearing with the North Dakota Department of Transportation (NDDOT) within 10 days of receiving a Report and Notice, which usually serves as a temporary operator’s permit, your license will automatically be suspended at the expiration of your temporary permit, which lasts for 25 days. See N.D. Cent. Code § 39-20-05. If you do not contact the NDDOT within those ten days, there is nothing that can be done when it comes to contesting the loss of your driving privileges. See Schaaf v. North Dakota Dept. of Transp., 2009 ND 145, ¶ 771 N.W.2d 237. That is why it is so important to act quickly after your arrest.
The administrative hearing is quite different than your court hearings. The burden of proof at the administrative hearing is considerably lower than if you were going to trial. While the burden of proof at trial is beyond a reasonable doubt, the burden of proof at an administrative hearing is preponderance of the evidence, which is satisfied if it can be shown that something was more likely to happen than not. This means it is easier for the State to provide enough evidence to suspend your license. To learn more on burdens of proof, you can read my previous post discussing that subject here: /blog/2016/04/proof-beyond-a-resonable-doubt-what-does-that-mean.shtml
Also, the questions for the hearing officer are more narrow than if you were to take the matter to trial. The hearing officer will only evaluate 4 things when contemplating suspension: (1) whether law enforcement had reasonable grounds to believe you were in actual physical control over your vehicle while under the influence, (2) whether you were arrested, (3) whether you were tested in accordance with the law, and (4) whether the results of those tests show you were over the legal limit. N.D. Cent. Code § 39-20-05(2). Recently, there have been some intriguing developments in the law when it comes to the third factor after the United States Supreme Court ruled in the Birchfield v. North Dakota case, so you may want to contact an attorney to see if that case applies to you.
If you are not satisfied with the hearing officer’s decision, you have the right to appeal to the District Court for review. However, the District Court only determines “whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Kiecker v. North Dakota Dept. of Transp., 2005 ND 23, ¶8, 691 N.W.2d 266. You cannot present new evidence to the District Court and the district court must affirm the Order unless one or more of a limited set of conditions are found. N.D. Cent Code § 28-32-46.
If you are facing a DUI charge, an attorney at Brudvik Law Office can help guide you through the process and represent you at both the criminal and administrative hearings. Remember, you are presumed innocent until proven guilty. Contact us online or at 701-786-6177 to discuss your options to ensure that your Constitutional Rights are protected.