State v. Sinner

TEIGEN, Judge

(concurring specially).

I concur in the result. However I do not agree that a conviction of driving while a person’s operator’s license is suspended constitutes an “emergency situation” as envisioned under Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Bell lays down a rule which is restricted to a situation where “a State seeks to terminate an interest such as that here involved.” The “situation here involved” in Bell concerns Georgia’s Motor Vehicle Safety Responsibility statute which provides that an uninsured motorist’s vehicle registration and driver’s license are subject to suspension if he is involved in an accident and fails to post security to cover the amount of damages claimed by the aggrieved party unless he has filed a release from liability executed by the injured party or there has been an adjudication of nonli-ability. The United States Supreme Court in Bell found that Georgia’s statute was liability related and, therefore, procedural due process required a determination of whether there was a reasonable possibility of a judgment being rendered against the driver as a result of the accident before the State could suspend the person’s automobile registration and driver’s license The court, in its reasoning, stated:

“Thus, we are not dealing here with a no-fault scheme. Since the statutory scheme makes liability an important fac*503tor in the State’s determination to deprive an individual of his licenses, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing." Bell v. Burson, supra, 402 U.S. at 541, 91 S.Ct. 1586 at 1590, 29 L.Ed.2d at 96.

The court concluded that the State must provide a forum for the determination of the question of whether there was a reasonable possibility of a judgment being rendered against the driver as a result of the accident before his driver’s license and vehicle registration could be suspended, and then stated:

“We deem it inappropriate in this case to do more than lay down this requirement.’’ Bell v. Burson, supra, 402 U.S. at 542, 91 S.Ct. at 1591, 29 L.Ed.2d at 96.

As analyzed in State v. Harm, 200 N.W.2d 387 (N.D.1972), our statutory scheme is not liability related, that is, it is not fault related. Section 39-06-42, N.D. C.C., makes it a misdemeanor to drive a motor vehicle upon the highways when the privilege to do so is suspended. On conviction the trial court must forward to the commissioner a record of the conviction. Section 39-06-29, N.D.C.C. The commissioner, upon receipt of the record of conviction, shall extend the period of suspension for an added like period. Section 39-06-43, N.D.C.C. Where this has occurred, the license or driving privilege of such person shall remain suspended and shall not thereafter be renewed or a license issued to such person unless he shall comply with the Financial Responsibility Act. Section 39-16.1-07(2), N.D.C.C. The Financial Responsibility Act provides that financial responsibility means proof to respond in damages for liability on account of accidents occurring subsequent to the effective date of said proof. Section 39-16.1-02, N.D.C.C.

Therefore under our statutory scheme, if an accident occurred while the motorist was driving while his license was suspended, the action taken by the commissioner in respect to that person’s driver’s license, or the filing of proof of financial responsibility to obtain a renewal or issuance of a driver’s license by such person, is in no way fault or liability related as no security need be filed to cover damages, if any, resulting from the past illegal driving.

For these reasons it is my opinion that Bell does not apply and for reasons set forth in State v. Harm, supra, procedural due process does not require a presuspension hearing.