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

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

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

(b)  The respondent shall have the opportunityto demonstrate in writing why the respondent's license and privilege to operatea vehicle, and motor vehicle registration if applicable, should not beadministratively revoked and, within three days of receiving the notice of administrativerevocation, as provided in section 291E-33, shall submit any writteninformation, either by mail or in person, to the director's office or to anyoffice or address designated by the director for that purpose.

(c)  In conducting the administrative review,the director shall consider:

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

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

(3)  The sworn statement of any law enforcementofficer or other person or other evidence or information required by section291E‑36.

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

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

(2)  There existed probable cause to believe that therespondent 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 whileunder the influence of an intoxicant; or

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

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

(ii)  Of the sanctions of this part and thenasked 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 revokethe registration of any vehicle owned or registered to the respondent and takecustody of any number plates issued to the respondent if the directordetermines that the respondent is a repeat intoxicated driver and that:

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

(2)  There existed probable cause to believe that therespondent 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 whileunder the influence of an intoxicant; or

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

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

(ii)  Of the sanctions of this part and thenasked 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 supportadministrative revocation, the director shall rescind the notice ofadministrative revocation and return the respondent's license, and ifapplicable, motor vehicle registration and any number plates taken intocustody, along with a certified statement that administrative revocationproceedings have been terminated.

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

(1)  State the reasons for the administrativerevocation;

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

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

(4)  Be accompanied by a form, postage prepaid, thatthe respondent may fill out and mail in order to request an administrativehearing;

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

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

(h)  Failure of the respondent to request ahearing within the time provided in section 291E‑38(a) shall cause theadministrative revocation to take effect for the period and under theconditions provided in the administrative review decision issued by thedirector under this section.  The respondent may regain the right to anadministrative hearing by requesting the director, within sixty days of theissuance of the notice of administrative revocation as provided in section 291E‑33,to schedule an administrative hearing.  The administrative hearing shall bescheduled to commence no later than thirty days after the request is receivedby the director.  The administrative review decision issued by the directorunder this section shall explain clearly the consequences of failure to requestan administrative hearing and the procedure by which the respondent may regainthe right to a hearing. [L 2000, c 189, pt of §23; am L 2001, c 157, §18; am L2006, 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 offenseoccurring after the §291E-31 notice of administrative revocation has beenissued, as a basis for increasing an administrative revocation period alreadydetermined on administrative review by the director under §291E-41 and thissection.  108 H. 350, 120 P.3d 249.