Opinion
No. 5-327 / 04-1233
Filed May 11, 2005
Appeal from the Iowa District Court for Buchanan County, Todd A. Geer, Judge.
Richard Allen Hoffman appeals a district court decision affirming the Department of Transportation's revocation of his driver's license. AFFIRMED.
Carter Stevens of Roberts, Stevens Lekar, P.L.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Mark Hunacek, Assistant Attorney General, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
On July 18, 2003, Richard Allen Hoffman was arrested for operating while intoxicated. Upon his arrest, he was read the implied consent advisory and failed the requested alcohol concentration test. The arresting officer took Hoffman's driver's license but did not provide him notice of the Iowa Department of Transportation's (DOT) revocation of his driving privileges. He was later provided a copy upon his release from custody. On July 23, Hoffman filed a request for a hearing to contest the revocation of his driving privileges.
On September 4, a hearing was held whereby Hoffman asserted that revocation should be rescinded as he was not properly served with notice of the revocation. The DOT Administrative Law Judge (ALJ) then entered an order dismissing without prejudice the revocation of Hoffman's license. Hoffman did not appeal the ALJ's decision to make the dismissal without prejudice.
On September 5, a new notice of revocation was mailed to Hoffman. This revocation was to be effective for one year, beginning on September 20, 2003. On September 11, Hoffman requested a hearing contesting this revocation, and a hearing was held on October 20.
At this hearing Hoffman raised, among other things, the issue of whether the time requirements of Iowa Code section 321J.13 were met. Iowa Code section 321J.13 (2003) provides, in part,
. . . 2. The [DOT] shall grant the person an opportunity to be heard within forty-five days of the receipt of a request for a hearing.
. . . 5. If the department fails to comply with the time limitations of this section regarding granting a hearing . . . the revocation of the driver's license or operating privilege of the person who made the request for a hearing or review shall be rescinded.
Following this hearing the ALJ sustained the revocation, and the reviewing officer of the DOT affirmed. On judicial review the district court also affirmed the revocation. Hoffman appeals.
An appellate court's review of the DOT's decision to revoke a driver's license is governed by Iowa's Administrative Procedure Act, chapter 17A. Voss v. Iowa Dep't of Transp., 621 N.W.2d 208 (Iowa 2001).
Applying these standards for review, we determine whether our conclusions are the same as those made by the district court. Id. If they are, we affirm; if not, we decide whether the district court has incorrectly applied the law. Id.
In affirming the DOT's revocation of Hoffman's license, the district court found
that [Hoffman] could have had his hearing within the initial 45-day period. However, petitioner chose, instead, to challenge the sufficiency of the notice. He succeeded, essentially waiving his right to a full hearing at that time. When the revocation was rescinded without prejudice, petitioner did not appeal the aspect of the ruling which held the rescission was without prejudice. Because of that, and because the next notification of revocation was properly served and hearing held within 45 days of request for hearing, the matter proceeded to full hearing, and a decision adverse to petitioner was properly entered.
Following a motion to enlarge/modify filed by Hoffman, the district court clarified its ruling by stating, "While petitioner did not formally waive his right to a timely hearing when he moved to rescind, he elected to pursue that remedy rather than stand on his right to a timely hearing."
Upon our review, we agree with the district court's conclusion, but for a different reason. Iowa Code section 321J.13(2) provides that the DOT must grant a person a hearing within forty-five days "of the receipt of a request." As asserted by the DOT, in this case two requests for a hearing were made and two hearings were held, both within the forty-five day period provided by Iowa Code section 321J.13. Hoffman's first request, made on July 23, challenged the revocation he was facing in July of 2003. The hearing requested was held on September 4, at which time Hoffman's July revocation was dismissed without prejudice.
On September 5, the DOT initiated a new revocation by mailing proper notice to Hoffman. This notice indicated that Hoffman's revocation would be from September 20, 2003, to September 20, 2004. Thus, this revocation was separate and distinct from the revocation previously dismissed. Hoffman requested a hearing to contest this revocation and received a hearing on October 20, well within forty-five days of this request for hearing.
Therefore we conclude the time requirements of Iowa Code section 321J.13 were not violated. Hoffman made two requests for a hearing and received two different hearings, both within forty-five days of the pertinent request. Accordingly, we affirm the decision of the district court.