State v. Tininenko , 1985 N.D. LEXIS 363 ( 1985 )

VANDE WALLE, Justice.

Dalton Tininenko appealed from a criminal judgment entered by the county court of Burleigh County which found him guilty of driving while his license was under suspension. We affirm.

On June 17, 1984, Tininenko was stopped for speeding by a law-enforcement officer in rural Burleigh County. When the officer performed a computer check on Tini-nenko’s driver’s license, he determined that Tininenko was driving while his license was under suspension [hereinafter D.U.S.]. The officer arrested Tininenko and charged him with D.U.S. in violation of Section 39-06-42, N.D.C.C. At a bench trial on the D.U.S. charge, evidence was presented that Tininenko had previously been convicted of D.U.S. in December of 1983. The trial court found Tininenko guilty of the second D.U.S. charge and Tininenko appealed.

Tininenko appears to assert on appeal that he should have been given a hearing prior to suspension of his privilege to drive following the December 1983 conviction.

The United States Supreme Court in Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90, 96 (1971), stated, “... it is fundamental that except in emergency situations ... due process requires that when a State seeks to terminate an interest such as that here involved, it must afford ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” See also State v. Knittel, 308 N.W.2d 379 (N.D.1981).

This court in Kosmatka v. Safety Responsibility Division, Etc., 196 N.W.2d 402, 406 (N.D.1972), in interpreting the Bell decision, held:

“... the conviction on the DWI charge ... is within the emergency exception as enunciated in Bell and therefore a hearing is not required to revoke Kosmatka’s license, the reason being that the Legislature in effect has declared that a conviction on a DWI charge constitutes an emergency.... We determine that the interests of protecting the public create such an emergency as to outweigh the requirement of a hearing for -a driver who has been convicted ... of a DWI charge.... The Bell decision, supra, does not require a hearing in all driver’s license revocation cases.... ”

In State v. Harm, 200 N.W.2d 387 (N.D.1972), this court determined that the North Dakota statutes which operate to suspend without a hearing the license of a driver who is convicted of driving while his license was under suspension are constitutional and do not violate due process. The particular statutes referred to by this court in Harm and relevant to this case remain unchanged today. We stated in Harm, supra, 200 N.W.2d at 393-394:

“... Upon further study of Bell and our statutes, as they relate to this case, we find that the North Dakota statutory scheme, under the Operators’ Licenses chapter (39-06, N.D.C.C.) and Section 39-16.1-07(2), N.D.C.C., which requires that a driver who operates a motor vehicle upon our highways while his operator’s license is under suspension must furnish and maintain proof of financial responsibility, are not developed around liability-related concepts, which was the basis of the holding in Bell.

“Our statutes provide that it is a misdemeanor to drive a motor vehicle upon the highways when the privilege to do so is suspended (Section 39-06-42, N.D.C. C.)_ The commissioner, upon receiving a record of the conviction of any person upon a charge of driving a vehicle while the license or driver’s privilege of such person is suspended, shall extend the period of such suspension for an added like period and, if the original suspension was for an indefinite or unstated period of time, shall order an additional suspension for six months (Section 39-06-43, N.D.C.C.); provided such license or driving privilege shall remain suspended and shall not thereafter be renewed nor a license issued to such person unless he shall give and thereafter maintain proof of financial responsibility (Section 39-16.1-07, N.D.C.C.).”

It is clear from the relevant sections of Chapters 39-06 and 39-16.1, N.D.C.C., and from our caselaw that a pre-suspension hearing was not required in this case. See also State v. Sinner, 207 N.W.2d 495 (N.D.1973).

The primary thrust of Tininenko’s appeal, however, is that he had no actual notice on June 17, 1984, nor for the five preceding months, that his driving privilege had been suspended by the Commissioner.

In furthering his no-notice argument Tin-inenko relies chiefly upon our decision in State v. Knittel, 308 N.W.2d 379 (N.D.1981). In Knittel, the defendant appealed his conviction of D.U.S. The defendant had previously been arrested for driving while intoxicated and had pleaded guilty. Thereafter, the Driver’s License Division sent notice of an opportunity for hearing on the suspension and an order for suspension to the defendant’s correct address. The defendant testified at trial that he did not receive either of these mailings. The trial court granted the defendant’s motion for dismissal. On appeal we determined that the issue of the alleged receipt of the notice of an opportunity for a hearing was controlling. In Knittel, supra, 308 N.W.2d at 384, we held that “notice of an-opportunity for a hearing sent by regular mail is insufficient to guarantee due process when the presumption of receipt raised by Section 31-11-03(24), N.D.C.C., is rebutted,

We noted in Knittel that the issue of the alleged receipt of the order for suspension was resolved by State v. Hagstrom, 274 N.W.2d 197 (N.D.1979). In Hagstrom, because the defendant knew that the Drivers License Division intended to suspend his license, we affirmed the judgment of conviction even though the defendant asserted that he had not received the order of suspension and that he had no actual knowledge of the license suspension.

We conclude this case is clearly distinguishable from Knittel, supra. Here, as we have noted, Tininenko is not entitled to a pre-suspension hearing.

Tininenko nevertheless asserts that the State’s evidence failed to prove beyond a reasonable doubt that he had received notice that his driving privilege had been suspended. Tininenko’s bookkeeper, Rebecca Schultz, testified that Tininenko had not received any order or notice of suspension from the North Dakota State Motor Vehicle Department during the period from approximately December 21, 1983, to June 17, 1984, at his Williston address.¹

The State contended that Tininenko received actual notice of suspension of his driving privilege by way of a notice of suspension mailed to his Williston postof-fice address by Norma Breckel, a State Highway Department, Drivers License Division, suspension clerk. Mrs. Breckel testified that on June 17, 1984, Tininenko’s privilege to drive was under suspension. That particular suspension was originally imposed on December 21, 1983, because Tininenko had been convicted of driving under a prior suspension. The December 21, 1983, suspension was to be in effect for 14 days and until Tininenko furnished proof of financial responsibility. Because Tininenko failed to furnish proof of financial responsibility the suspension remained in effect.

Mrs. Breckel testified that a certified copy of the order of suspension with an effective date of December 21, 1983, was mailed to Tininenko’s Williston, North Dakota, address on December 19, 1983. The December 19 mailing of the order of suspension was not returned to the Highway Department. Mrs. Breckel further testified that the Highway Department mailed other notices to Tininenko at his Williston address and that Tininenko responded. The Highway Department had sent Tini-nenko a notice on December 7, 1983, stating that he should pay a $25 fee for reinstatement of his driving privilege. This notice was in regard to a matter different from the D.U.S. Mrs. Breckel testified that she received a response to the December 7 notice on January 25, 1984.

On cross-examination, Mrs. Breckel testified that when a driver fails to provide proof of financial responsibility, that being an administrative violation, the Highway Department does not then send a notice for an opportunity for a hearing prior to the suspension or continuation of the suspension. Thus the only notice that the Highway Department mailed indicating that Tin-inenko’s license was under suspension was the order of suspension. Mrs. Breckel testified that she mailed the order of suspension by delivering the document to the mailroom in the Highway Department building. She testified that she had signed an affidavit on the order of suspension and had it notarized, that affidavit stating that she had placed the order of suspension in the mails of the United States Post Office.

The trial court determined that the evidence presented by Tininenko concerning nonreceipt of the notice of suspension failed to rebut the presumption of delivery of notice found in Section 31-11-03(24), N.D.C.C.

In State v. Olmstead, 246 N.W.2d 888, 890 (N.D.1976), cert. denied 436 U.S. 918, 98 S.Ct. 2264, 56 L.Ed.2d 759 (1978), we explained the position of this court when faced with a review of evidence and the credibility of witnesses:

“On the question of credibility of witnesses, reading a cold transcript is no substitute for hearing and observing witnesses as they testify. Tones of voice, hesitations, confusion, surprise, and other telltale indications of mental state convey to trial judges and jurors much that is lost to appellate judges. If we were to judge from the cold print, we might decide many eases differently than trial judges do, and this case might be one of them. But, if we decided differently, we would have no assurance that ours was the better decision. We are reluctant to reverse factual findings of juries or trial judges. Appellate courts have stated in many ways, in both civil and criminal cases, their determination to give respect to the findings of trial judges and juries. Sometimes they say they will not reverse if there is substantial evidence to support the verdict [Kresel v. Giese, 231 N.W.2d 780, 791 (N.D.1975)]; sometimes they say they will not substitute their judgment for that of the trial court or jury [State v. Champagne, 198 N.W.2d 218, 226 (N.D.1972); sometimes they speak of viewing the evidence in the light most favorable to the judgment [State v. Neset, 216 N.W.2d 285, 290 (N.D.1974); and sometimes they speak of their great reliance on the findings of the lower court [In re Estate of Elmer, 210 N.W.2d 815, 819 (N.D.1973) ].

“In criminal cases we have repeatedly held that ‘at the appellate level we do not substitute our judgment for that of the jury or trial court where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction.’ State v. Kaloustian, 212 N.W.2d 843, 845 (N.D.1973), and cases cited therein; State v. Neset, 216 N.W.2d 285, 287 (N.D.1974).

“However stated, these rules indicate a recognition that the truth can better be determined in the confrontation of the testimony of witnesses appearing in person than from a transcript of the testimony of those witnesses.”

Here, the trial court heard the testimony of both Tininenko and his secretary, and of Mrs. Breckel. The court was able to observe the demeanor of each of them and to judge their credibility. The court accepted Mrs. Breckel’s testimony as being correct. There was substantial competent evidence to support the court’s factual determination and Tininenko has failed to leave us “... with a definite and firm conviction that a mistake has been committed.” State v. Olmstead, supra, 246 N.W.2d at 890. See also State v. Ennis, 334 N.W.2d 827 (N.D.1983).

The judgment of conviction is affirmed.

ERICKSTAD, C.J., LEVINE, J., and JOHN O. GARAAS, District Judge, concur. GARAAS, District Judge, participating in place of GIERKE, J., disqualified.

1 . Dalton Tininenko maintains two residences, the principal one being in Williston, North Dakota, where he works most of the year as a carpenter and contractor. , Tininenko has a family farm in rural Bainville, Montana, located just across the State line between North Dakota and Montana.