§291E-37 - Administrative review; procedures; decision.

§291E-37 Administrative review; procedures;
decision. (a) The director automatically shall review the issuance of a
notice of administrative revocation and shall issue a written decision
administratively revoking the license and privilege to operate a vehicle, and
motor vehicle registration if applicable, or rescinding the notice of
administrative revocation. The written review decision shall be mailed to the
respondent, or to the parent or guardian of the respondent if the respondent is
under the age of eighteen, no later than:

(1) Eight days after the date the notice was issued
in a case involving an alcohol related offense; or

(2) Twenty-two days after the date the notice was
issued in a case involving a drug related offense.

(b) The respondent shall have the opportunity
to demonstrate in writing why the respondent's license and privilege to operate
a vehicle, and motor vehicle registration if applicable, should not be
administratively revoked and, within three days of receiving the notice of administrative
revocation, as provided in section 291E-33, shall submit any written
information, either by mail or in person, to the director's office or to any
office or address designated by the director for that purpose.

(1) Any sworn or unsworn written statement or other
written evidence provided by the respondent;

(2) The breath, blood, or urine test results, if any;
and

(3) The sworn statement of any law enforcement
officer or other person or other evidence or information required by section
291E‑36.

(d) The director shall administratively revoke
the respondent's license and privilege to operate a vehicle if the director
determines that:

(1) There existed reasonable suspicion to stop the
vehicle, the vehicle was stopped at an intoxicant control roadblock established
and operated in compliance with sections 291E‑19 and 291E‑20, or
the person was tested pursuant to section 291E‑21;

(2) There existed probable cause to believe that the
respondent operated the vehicle while under the influence of an intoxicant; and

(3) The evidence proves by a preponderance that:

(A) The respondent operated the vehicle while
under the influence of an intoxicant; or

(B) The respondent operated the vehicle and
refused to submit to a breath, blood, or urine test after being informed:

(i) That the person may refuse to submit to
testing in compliance with section 291E-11; and

(ii) Of the sanctions of this part and then
asked if the person still refuses to submit to a breath, blood, or urine test,
in compliance with the requirements of section 291E-15.

(e) The director shall administratively revoke
the registration of any vehicle owned or registered to the respondent and take
custody of any number plates issued to the respondent if the director
determines that the respondent is a repeat intoxicated driver and that:

(2) There existed probable cause to believe that the
respondent operated the vehicle while under the influence of an intoxicant; and

(3) The evidence proves by a preponderance that:

(A) The respondent operated the vehicle while
under the influence of an intoxicant; or

(B) The respondent operated the vehicle and
refused to submit to a breath, blood, or urine test after being informed:

(i) That the person may refuse to submit to
testing in compliance with section 291E-11; and

(ii) Of the sanctions of this part and then
asked if the person still refuses to submit to a breath, blood, or urine test,
in compliance with the requirements of section 291E-15.

(f) If the evidence does not support
administrative revocation, the director shall rescind the notice of
administrative revocation and return the respondent's license, and if
applicable, motor vehicle registration and any number plates taken into
custody, along with a certified statement that administrative revocation
proceedings have been terminated.

(g) If the director administratively revokes
the respondent's license and privilege to operate a vehicle, and motor vehicle
registration if applicable, the director shall mail a written review decision
to the respondent, or to the parent or guardian of the respondent if the
respondent is under the age of eighteen. The written review decision shall:

(1) State the reasons for the administrative
revocation;

(2) Indicate that the respondent has six days from
the date the decision is mailed to request an administrative hearing to review
the director's decision;

(3) Explain the procedure by which to request an
administrative hearing;

(4) Be accompanied by a form, postage prepaid, that
the respondent may fill out and mail in order to request an administrative
hearing;

(5) Inform the respondent of the right to review and
copy all documents considered at the review, including the arrest report and
the sworn statements of law enforcement officers or other persons, prior to the
hearing; and

(6) State that the respondent may be represented by
counsel at the hearing, submit evidence, give testimony, and present and
cross-examine witnesses, including the arresting law enforcement officer.

(h) Failure of the respondent to request a
hearing within the time provided in section 291E‑38(a) shall cause the
administrative revocation to take effect for the period and under the
conditions provided in the administrative review decision issued by the
director under this section. The respondent may regain the right to an
administrative hearing by requesting the director, within sixty days of the
issuance of the notice of administrative revocation as provided in section 291E‑33,
to schedule an administrative hearing. The administrative hearing shall be
scheduled to commence no later than thirty days after the request is received
by the director. The administrative review decision issued by the director
under this section shall explain clearly the consequences of failure to request
an administrative hearing and the procedure by which the respondent may regain
the right to a hearing. [L 2000, c 189, pt of §23; am L 2001, c 157, §18; am L
2006, c 64, §6]

Case Notes

The administrative director of the courts (director) may not,
in an administrative hearing filed pursuant to §291E-38, consider an offense
occurring after the §291E-31 notice of administrative revocation has been
issued, as a basis for increasing an administrative revocation period already
determined on administrative review by the director under §291E-41 and this
section. 108 H. 350, 120 P.3d 249.