North Dakota Code 20.1-13.1-08 – Administrative hearing on request
1. Before prohibiting a person from operating a motorboat or vessel under section 20.1-13.1-06 or 20.1-13.1-07, the director shall afford that person an opportunity for a hearing if the person mails a request for the hearing to the director within ten days after the date the game warden or law enforcement officer issued a statement of intent to prohibit the person from operating a motorboat or vessel. The hearing must be held within twenty-five days after the date of issuance of the statement of intent, but the hearing officer may extend the hearing to within thirty-five days after the issuance of the statement of intent if good cause is shown.
Terms Used In North Dakota Code 20.1-13.1-08
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Arrest: Taking physical custody of a person by lawful authority.
- Director: means the director of the department. See North Dakota Code 20.1-01-02
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- Individual: means a human being. See North Dakota Code 1-01-49
- Motorboat: means any vessel propelled by machinery, whether or not the machinery is the principal source of propulsion. See North Dakota Code 20.1-01-02
- Person: includes every partnership, association, corporation, and limited liability company. See North Dakota Code 20.1-01-02
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- Vessel: means any watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on water. See North Dakota Code 20.1-01-02
- written: include "typewriting" and "typewritten" and "printing" and "printed" except in the case of signatures and when the words are used by way of contrast to typewriting and printing. See North Dakota Code 1-01-37
2. If the issue to be determined by the hearing concerns the prohibition from operating a motorboat or vessel for operating a motorboat or vessel while having an alcohol, other drug, or a combination thereof concentration of at least ten one-hundredths of one percent by weight, the hearing must be before a hearing officer assigned by the director and at a time and place designated by the director. The hearing must be recorded and its scope may cover only the issues of whether the arresting warden or officer had probable cause to believe the individual had been operating a motorboat or vessel in violation of section 20.1-13-07; whether the individual was placed under arrest; whether the individual was tested in accordance with section 20.1-13.1-01 or 20.1-13.1-04 and, if applicable, section 20.1-13.1-03; and whether the chemical test results show the individual had an alcohol, other drug, or a combination thereof concentration of at least ten one-hundredths of one percent by weight. For purposes of this section, a copy of a certified copy of an analytical report of a blood or urine sample from the director of the state crime laboratory or the director’s designee, or a certified copy of the checklist and test records from a certified breath test operator establish prima facie the alcohol, other drug, or a combination thereof concentration shown therein. Whether the individual was informed that that individual may be prohibited from operating a motorboat or vessel based on the results of the chemical test is not an issue.
3. If the issue to be determined by the hearing concerns the prohibition from operating a motorboat or vessel for refusing to submit to a chemical test under section 20.1-13.1-01, the hearing must be before a hearing officer assigned by the director at a time and place designated by the director. The hearing must be recorded. The scope of a hearing for refusing to submit to a chemical test under section 20.1-13.1-01 may cover only the issues of whether a game warden or law enforcement officer had probable cause to believe the person had been operating a motorboat or vessel in violation of section 20.1-13-07; whether the person was placed under arrest; and whether that person refused to submit to the chemical test.
4. At a hearing under this section, the regularly kept records of the director and state crime laboratory may be introduced. Those records establish prima facie their contents without further foundation. For purposes of this chapter, the following are deemed regularly kept records of the director and state crime laboratory:
a. Any copy of a certified copy of an analytical report of a blood or urine sample received by the director from the director of the state crime laboratory or the director’s designee or a game warden or a law enforcement officer or a certified copy of the checklist and test records received by the director from a certified breath test operator; and
b. Any copy of a certified copy of a certificate of the director of the state crime laboratory or the director’s designee relating to approved methods, devices, operators, materials, and checklists used for testing for alcohol concentration or the presence of other drugs, or a combination thereof, received by the director from the director of the state crime laboratory or the director’s designee that have been electronically posted with the state crime laboratory division of the attorney general at the attorney general website.
5. At the close of the hearing, the hearing officer shall notify the person of the hearing officer’s findings of fact, conclusions of law, and decision based on the findings and conclusions by issuing to the person a copy of the decision within ten days of the conclusion of the hearing. If the hearing officer does not find in favor of the person, the copy of the decision serves as the director’s official notification to the person that the person is prohibited from operating a motorboat or vessel in this state. The hearing officer shall report the findings, conclusions, and decisions to the director within ten days of the conclusion of the hearing.
6. If the person who requested a hearing under this section fails to appear at the hearing without justification, the right to the hearing is waived, and the hearing officer’s determination on prohibition of the person from operating a motorboat or vessel will be based on the written request for hearing, game warden’s or law enforcement officer’s report, and other evidence as may be available. The hearing officer shall, on the date for which the hearing is scheduled, mail to the person, by regular mail, at the address on file with the director, or at any other address for the person or the person’s legal representative supplied in the request for hearing, a copy of the decision which serves as the director’s official notification to the person that the person is prohibited from operating a motorboat or vessel in this state for the appropriate period. Even if the person for whom the hearing is scheduled fails to appear at the hearing, the hearing is deemed to have been held on the date for which it is scheduled for purposes of appeal under section 20.1-13.1-09.