Schirado v. North Dakota State Highway Commissioner

ERICKSTAD, Chief Justice,

concurring in the dissenting opinion of Justice MESCHKE.

I concur in Justice Meschke’s dissent, but I would have preferred, had I been able to obtain the agreement of a majority of our Court, to have remanded this case to the North Dakota State Highway Commissioner for a further evidentiary hearing at which time the State Toxicologist could have been examined concerning the effect of the abortive first test on the second test with appropriate opportunity for cross examination as well. In my view, the public’s interest in safe highways is as great as Mr. Schirado’s interest in maintaining his driving privileges.

The provisions of Section 28-32-18, N.D. C.C., would appear to permit such a procedure had an appropriate application been filed by the Commissioner disclosing that the additional evidence sought to be introduced was material and that reasonable grounds existed for the failure to adduce such evidence originally at the administrative hearing. Such an application should normally be made not to our Court but to the trial court. Unfortunately, such an application was not made to either the trial court or to this Court and, accordingly, agreement to remand is unachievable. See Insurance Services Office v. Knutson, 283 N.W.2d 395 at 400 (N.D.1979).