§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 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 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.

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

     (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)  If the evidence does not support administrative revocation, the director shall rescind the notice of administrative revocation and return the respondent's license along with a certified statement that administrative revocation proceedings have been terminated.

     (f)  If the director administratively revokes the respondent's license and privilege to operate a vehicle, 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.

     (g)  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; am L 2012, c 327, §14]

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 (2005).