concurring specially.
The issue in this case is: Did Tininenko have sufficient notice of suspension of his driver’s license to be convicted of the criminal offense of driving while under suspension, a class B misdemeanor under N.D. C.C. § 39-06-42?1
It is well understood that a driver’s license is a constitutionally protected interest. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). Procedural due process requires notice prior to deprivation of such an interest. This is an “elementary and fundamental requirement of due process.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).
Assumptions of knowledge or presumptions of notice, where in fact there is nei*766ther knowledge or notice, do not normally suffice. At least, such notice is required as is reasonably calculated to give actual notice under the circumstances. Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983): “[CJonstructive notice can never suffice whenever there is a legally protected property interest at stake;” 103 S.Ct. at 2713, 77 L.Ed.2d at 190; [O’Connor, J. dissenting, characterizing the holding of the majority opinion].
In this case, the suspension was an “amended order of suspension,” and apparently was a continuation of a prior suspension pursuant to N.D.C.C. § 39-06-43, because Tininenko had already been once convicted of driving while his license was suspended. Section 39-06-43 does not explicitly require notice of the extended or “amended” order of suspension, but N.D. C.C. § 39-06-33 does require notice of an initial order of suspension by ordinary mail.2 Individualized adverse administrative action by the State against a person, which is later used as foundation for criminal charges of non-compliance against that person, certainly requires notice. “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party ...;” Mennonite Board of Missions, supra, 103 S.Ct. at 2712, 77 L.Ed.2d at 188. (Emphasis in original.)
Notice is a matter of fact. State v. Knittel, 308 N.W.2d 379 (1981). Actual notice by ordinary mail is usually sufficient. “[T]he mails provide an ‘efficient and inexpensive means of communication’ ... upon which prudent men will ordinarily rely in the conduct of important affairs;” Greene v. Lindsey, 456 U.S. 444, 455, 102 S.Ct. 1874, 1880, 72 L.Ed.2d 249 (1982).
But, there is also some frailty in notice by ordinary mail. As Justice O’Connor dissenting in Greene, supra, 456 U.S. at 460, 102 S.Ct. at 1883, observed, there is risk of “loss, misdelivery, lengthy delay, or theft” of ordinary mail and “unattended mailboxes are subject to plunder.” When a statutory regime relies on the economy and efficiency of ordinary mail for the notice required by procedural due process, its purpose may fail if there is no actual notice. Where presumptive evidence “that a letter duly directed and mailed was received in the regular course of the mail” is “contradicted by other evidence,” N.D.C.C. § 31-11-03(24), the issue of actual notice is for the trier of fact to decide. N.D.C.C. § 12.1-01-03(4).3
The use of permissive inferences and re-buttable presumptions for evidentiary purposes in a criminal case is still constitutionally permissible, as was well explained by *767Justice VandeWalle in footnote 6, State v. Trieb, 315 N.W.2d 649, 654 (N.D.1982).4 Therefore, Tininenko’s reliance on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 -L.Ed.2d 39 (1979), in an effort to sweep away the rebuttable presumption of receipt of a properly mailed notice, is misplaced.
Although the trial court in this case apparently was uncertain if actual notice was required by this Court’s prior decision in State v. Hagstrom, 274 N.W.2d 197 (N.D.1979), it should be noted that the Court in Hagstrom did not consider or decide the constitutional issue of notice. Here, the trial court did expressly determine that the mailed notice of the amended order of suspension was received:
“I do not find that the evidence presented at trial rebuts the presumption of delivery of the notice in this case. The testimony of the defendant and ... [his] employee, were not persuasive.”
Since “the presumed fact is deemed sufficiently proved to warrant submission of the issue” to the trier of fact, and since the trier of fact “may arrive at that judgment [the existence of the presumed fact] on the basis of the presumption alone ...,” N.D. C.C. § 12.1-01-03(4), I concur with the majority opinion that there was substantial competent evidence to support the court’s factual determination of notice.
Therefore, I concur in affirming the judgment of conviction.
. Tininenko's argument seems to also suggest that notice should have afforded opportunity for an evidentiary hearing, but he has not mar-shalled any significant legal or factual predicates why that should be so in these circumstances. Since the risk of error in mere exten- . sion of a suspension is minimal, it is doubtful to what extent, if any, an evidentiary hearing may be due constitutionally. Matthews v. Eldridge, 424 U.S. 319, 339-343, 96 S.Ct. 893, 904-907, 47 L.Ed.2d 18 (1976). Because that issue is not squarely presented in this case, there is no need to address it.
Nor, is any issue of the adequacy of the form of notice presented in this case. See, Atkins v. Parker, — U.S. —, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985); See also, Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-22, 98 S.Ct. 1554, 1562-1567, 56 L.Ed.2d 30 (1978).
. "Where a statute is subject to two possible constructions, one which is of doubtful constitutionality and one which is not, the latter must be adopted. State v. Howe, 247 N.W.2d 647 (N.D.1976). Accordingly, we construe the statute to require more than constructive notice. State v. Knittel, 308 N.W.2d 379, 383 (N.D.1981).
. We are referred to § 12.1-01-03 for the effect of presumptions in criminal cases by the Explanatory Note to the omitted rule on "Presumptions in Criminal Cases,” at Rule 303, N.D.R.Ev.: "(Presumptions in criminal cases are governed by § 12.1-01-03, N.D.C.C.)” Interestingly, this proposed evidentiary rule, which was similar in effect to the statutory provisions of § 12.1 — 01— 03(4), (see text at 11 Moore's Federal Practice, Appendix 1-9), was also omitted from the Federal Rules of Evidence by Congress when the Rules of Evidence were enacted in 1974:
"The Committee deleted this Rule since the subject of presumptions in criminal cases is addressed in detail in bills now pending before the Committee to revise the federal criminal code. The Committee determined to consider this question in the course of its study of these proposals.” 1974 U.S.Code Congressional and Administrative News, p. 7051, at 7079 (legislative history and purpose of Pub.L. 93-595 enacting the Federal Rules of Evidence).
However, the Comprehensive Crime Control Act of 1984, "the product of a decade long bipartisan effort ... to make major comprehensive improvements to the Federal criminal laws,” did not include any general provisions on the effects of presumptions in criminal cases, although it enacted at least one such evidentiary presumption. 1984 U.S. Code Congressional and Administrative News, pp. 3182-3717, particularly at 3184 and 3395. (Note that the effect of presumptions in civil actions is governed by Rule 301, N.D.R.Ev.).
. "[T]he evidence as a whole must establish the presumed fact beyond a reasonable doubt,....”; N.D.C.C. § 12.1 — 01—03(4)(b).