§291E-38  Administrative hearing; procedure;decision.  (a)  If the director administratively revokes the respondent'slicense and privilege to operate a vehicle, and motor vehicle registration ifapplicable, after the administrative review, the respondent may request anadministrative hearing to review the decision within six days of the date theadministrative review decision is mailed.  If the request for hearing isreceived 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 ofadministrative revocation was issued in a case involving an alcohol relatedoffense; or

(2)  Thirty-nine days from the date the notice ofadministrative revocation was issued in a case involving a drug relatedoffense.

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

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

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

(d)  The director shall conduct the hearing andhave 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 revocationperiod as specified under section 291E‑41(b); and

(7)  Make a final ruling.

(e)  The director shall affirm theadministrative revocation only if the director determines 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 testin compliance with the requirements of section 291E-15.

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

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

(h)  The sworn statements provided in section291E-36 shall be admitted into evidence.  The director shall consider the swornstatements in the absence of the law enforcement officer or other person.  Uponwritten 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 personwho made a sworn statement, the director shall issue a subpoena for the officeror other person to appear at the hearing.  Personal service upon the lawenforcement officer or other person who made a sworn statement shall be made nolater than forty-eight hours prior to the hearing time.  If the officer orother person cannot appear, the officer or other person at the discretion ofthe director, may testify by telephone.

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

(j)  The director's decision shall be renderedin writing and mailed to the respondent, or to the parent or guardian of therespondent if the respondent is under the age of eighteen, no later than fivedays after the hearing is concluded.  If the decision is to reverse theadministrative revocation, the director shall return the respondent's license,and if applicable, motor vehicle registration and any number plates taken intocustody, along with a certified statement that administrative revocationproceedings have been terminated.  If the decision sustains the administrativerevocation, the director shall mail to the respondent a written decisionindicating the duration of the administrative revocation and any otherconditions or restrictions as may be imposed pursuant to section 291E‑41.

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

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

(m)  If the respondent fails to appear at thehearing, or if a respondent under the age of eighteen fails to appear with aparent or guardian, administrative revocation shall take effect for the periodand under the conditions established by the director in the administrativereview decision issued by the director under section 291E‑37. [L 2000, c189, pt of §23; am L 2001, c 157, §19; am L 2002, c 113, §§4 to 6; am L 2006, c64, §7 and c 201, §4]

 

Case Notes

 

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

  Due process rights not violated by administrative driver'slicense revocation hearing procedure where defendant was afforded a hearingwhere witnesses were called and defendant was represented by counsel, andhearing office advised counsel of the procedure that hearing officer was goingto 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 anoffense occurring after the §291E-31 notice of administrative revocation hasbeen issued, as a basis for increasing an administrative revocation periodalready determined on administrative review by the director under §§291E-37 and291E-41.  108 H. 350, 120 P.3d 249.

  Where effect of administrative driver's license revocationoffice's default decision under this section was to deprive petitioner ofdriver's license, a constitutionally protected property interest, the risk oferroneous deprivation of this interest through the procedures the office usedwas great, and outweighed the government's interest, including the function ofthe office and the fiscal and administrative burdens that any additional orsubstitute procedural requirement would entail, procedural due process rightdenied.  110 H. 407, 133 P.3d 1199.