§291E-38  Administrative hearing; procedure;
decision.  (a)  If the director administratively revokes the respondent's
license and privilege to operate a vehicle, and motor vehicle registration if
applicable, after the administrative review, the respondent may request an
administrative hearing to review the decision within six days of the date the
administrative review decision is mailed.  If the request for hearing is
received by the director within six days of the date the decision is mailed,
the hearing shall be scheduled to commence no later than:



(1)  Twenty-five days from the date the notice of
administrative revocation was issued in a case involving an alcohol related
offense; or



(2)  Thirty-nine days from the date the notice of
administrative revocation was issued in a case involving a drug related
offense.



The director may continue the hearing only as
provided in subsection (k).



(b)  The hearing shall be held at a place
designated by the director, as close to the location where the notice of administrative
revocation was issued as practical.



(c)  The respondent may be represented by
counsel and, if the respondent is under the age of eighteen, must be
accompanied by a parent or guardian.



(d)  The director shall conduct the hearing and
have authority to:



(1)  Administer oaths and affirmations;



(2)  Examine witnesses and take testimony;



(3)  Receive and determine the relevance of evidence;



(4)  Issue subpoenas;



(5)  Regulate the course and conduct of the hearing;



(6)  Impose up to the maximum license revocation
period as specified under section 291E‑41(b); and



(7)  Make a final ruling.



(e)  The director shall affirm the
administrative revocation only 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.



(f)  In addition to subsection (e), the
director shall affirm the administrative revocation of the registration of any
motor vehicle owned by or registered to the respondent only if the director
determines that the respondent is a repeat intoxicated driver.  If the director
affirms the administrative revocation pursuant to this subsection, the director
shall order the respondent to surrender the number plates and motor vehicle registration
of any motor vehicle owned by or registered to the respondent.  The director
may destroy any number plates taken into custody.



(g)  The respondent's prior alcohol and drug
enforcement contacts shall be entered into evidence.



(h)  The sworn statements provided in section
291E-36 shall be admitted into evidence.  The director shall consider the sworn
statements in the absence of the law enforcement officer or other person.  Upon
written notice to the director, no later than five days prior to the hearing,
that the respondent wishes to examine a law enforcement officer or other person
who made a sworn statement, the director shall issue a subpoena for the officer
or other person to appear at the hearing.  Personal service upon the law
enforcement officer or other person who made a sworn statement shall be made no
later than forty-eight hours prior to the hearing time.  If the officer or
other person cannot appear, the officer or other person at the discretion of
the director, may testify by telephone.



(i)  The hearing shall be recorded in a manner
to be determined by the director.



(j)  The director's decision shall be rendered
in writing and 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 five
days after the hearing is concluded.  If the decision is to reverse the
administrative revocation, the director shall 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.  If the decision sustains the administrative
revocation, the director shall mail to the respondent a written decision
indicating the duration of the administrative revocation and any other
conditions or restrictions as may be imposed pursuant to section 291E‑41.



(k)  For good cause shown, the director may
grant a continuance either of the commencement of the hearing or of a hearing
that has already commenced.  If a continuance is granted at the request of the
director, the director shall extend the validity of the temporary permit, and
temporary motor vehicle registration and temporary number plates if applicable,
unless otherwise prohibited, for a period not to exceed the period of the
continuance.  If a continuance is granted at the request of the respondent, the
director shall not extend the validity of the temporary permit, or temporary
motor vehicle registration and temporary number plates, if applicable.  For
purposes of this section, a continuance means a delay in the commencement of
the hearing or an interruption of a hearing that has commenced, other than for
recesses during the day or at the end of the day or week.  The absence from the
hearing of a law enforcement officer or other person, upon whom personal
service of a subpoena has been made as set forth in subsection (h), constitutes
good cause for a continuance.



(l)  The director may grant a special motor
vehicle registration, pursuant to section 291E‑48, to a qualified
household member or a co-owner of any motor vehicle upon determination that the
person is completely dependent on the motor vehicle for the necessities of
life.  The special motor vehicle registration shall not be valid for use by the
respondent.



(m)  If the respondent fails to appear at the
hearing, or if a respondent under the age of eighteen fails to appear with a
parent or guardian, administrative revocation shall take effect for the period
and under the conditions established by the director in the administrative
review decision issued by the director under section 291E‑37. [L 2000, c
189, pt of §23; am L 2001, c 157, §19; am L 2002, c 113, §§4 to 6; am L 2006, c
64, §7 and c 201, §4]



 



Case Notes



 



  Inasmuch as the administrative driver's license revocation
office hearings are quasi-judicial in nature, due process requires that the
hearings be public.  104 H. 483, 92 P.3d 993.



  Due process rights not violated by administrative driver's
license revocation hearing procedure where defendant was afforded a hearing
where witnesses were called and defendant was represented by counsel, and
hearing office advised counsel of the procedure that hearing officer was going
to follow.  108 H. 31, 116 P.3d 673.



  The administrative director of the courts (director) may not,
in an administrative hearing filed pursuant to this section, 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-37 and
291E-41.  108 H. 350, 120 P.3d 249.



  Where effect of administrative driver's license revocation
office's default decision under this section was to deprive petitioner of
driver's license, a constitutionally protected property interest, the risk of
erroneous deprivation of this interest through the procedures the office used
was great, and outweighed the government's interest, including the function of
the office and the fiscal and administrative burdens that any additional or
substitute procedural requirement would entail, procedural due process right
denied.  110 H. 407, 133 P.3d 1199.