Schock v. N.D. Dept. of Transportation

20110254 Paul Alfred Schock, Appellant
v.
North Dakota Department
of Transportation, Appellee

Appeal from: District Court, South Central Judicial District, Mercer County
Judge Bruce B. Haskell
Nature of Action: Transportation Dept.
Counsel:
Appellant: Danny Lee Herbel
Appellee: Michael Trent Pitcher , Att. General Office
Term: 12/2011   Argument: 12/06/2011  Waived
ND cite: 2012 ND 77
NW cite: 815 N.W.2d 255


Issues: Appellant's Statement of the Issues:
I.Because there was no evidence presented establishing that the chemical test was performed within two (2) hours of driving a motor vehicle, the order suspending Mr. Schock's driving privileges is not in accordance with the law.
II.The hearing officer's failure to abide by the immediacy requirement of N.D.C.C.  39-20-05(5) was not in accordance with law.
III.The hearing officer's decision is without substantial justification and is so starkly in contravention of North Dakota law as to warrant the imposition of attorney's fees and costs as allowed by N.D.C.C.  28-32-50.

Appellee's Statement of the Issues:
I.The hearing officer's finding that Schock was chemically tested within two hours from the time of driving is supported by the weight of the evidence.
II.The immediacy language of N.D.C.C.  39-20-05(5) is not jurisdictional.
III.The hearing officer's decision was substantially justified and Schock is not entitled to attorney's fees.

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Docket entries:
109/06/2011 NOTICE OF APPEAL: 09/01/2011
209/07/2011 DISK - Adm. Agency Hearing Transcript dated 4-8-11 (e-mailed)
309/29/2011 ELECTRONIC RECORD ON APPEAL (entry nos. 1-26)
410/11/2011 APPELLANT BRIEF (e-filed) PDF
510/11/2011 E-FILED BRIEF (ATB) PDF
610/11/2011 APPELLANT APPENDIX (e-filed)
710/11/2011 E-FILED APPENDIX (ATA)
810/12/2011 Received $25 e-filing surcharge for ATB (Receipt #20703).
910/17/2011 Received 7 copies of ATB from Central Duplicating.
1010/17/2011 Received 6 copies of ATA from Central Duplicating.
1111/10/2011 APPELLEE BRIEF
1211/10/2011 DISK-AEB (E-MAILED)
1311/16/2011 NOTICE OF ORAL ARGUMENT SENT
1411/23/2011 S.CT. DETERMINED ORAL ARGUMENT NOT NECESSARY
1511/28/2011 REPLY BRIEF (e-filed)
1611/28/2011 E-FILED BRIEF (RYB)
1711/29/2011 Rec'd 7 copies RYB from Central Duplicating.
1812/06/2011 APPEARANCES: Waived under N.D.R.App.P. 34(a)
1912/06/2011 ARGUED: Waived
2004/10/2012 DISPOSITION: AFFIRMED
2104/10/2012 UNANIMOUS OPINION: Sandstrom, Dale V.
2204/10/2012 Concur in the result: Crothers, Daniel John: CON/RES
2304/10/2012 Costs on Appeal taxed in favor of Appellee
2404/11/2012 Judgment Sent to Parties
2504/23/2012 PETITION FOR REHEARING
2604/23/2012 E-FILED BRIEF (PER)
2704/24/2012 Rec'd 7 copies of PER from CSD
2805/03/2012 ACTION BY SUPREME COURT. Denied
2905/14/2012 MANDATE
3010/12/2012 Corrected/Substitute Opinion Pages

Generated from Supreme Court Docket on 09/02/2014