Webster v. Secretary of State

147 Mich. App. 762 (1985) 382 N.W.2d 745

WEBSTER
v.
SECRETARY OF STATE

Docket No. 82750.

Michigan Court of Appeals.

Decided October 15, 1985.

Talpos, Arnold & Rooyakker, P.C. (by John C. Talpos), for petitioner.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Mary Louise Albrecht, Assistant Attorney General, for respondent.

Before: D.E. HOLBROOK, JR., P.J., and T.M. BURNS and W.J. CAPRATHE,^[*] JJ.

PER CURIAM.

Petitioner's driver's license was suspended by the Secretary of State for one year after he refused to submit to a Breathalyzer test pursuant to the implied consent provision of the Michigan Vehicle Code, MCL 257.1 et seq.; MSA 9.1801 et seq. Petitioner appeals as of right from the circuit court's denial of his petition for restoration of driving privileges. Petitioner contends that the circuit court should have restored his driving privileges because the hearing which resulted in the suspension of his driver's license was not held in a timely fashion. Petitioner had requested an implied consent hearing after he received a "Notice of Receipt of Written Report of Refusal to Submit to Chemical Test for Alcohol * * *." The Driver License Appeal Division received petitioner's request on May 15, 1984, and a hearing was held on July 26, 1984, 72 days later.

Petitioner does not argue the reasonableness of the time period in which the hearing was held, but rather argues that he was entitled under Administrative Code Rule 257.33, 1979 AC, R 257.33, to have the hearing within 30 days. We must decide whether Rule 257.33 should be read to incorporate the statute, MCL 257.625f; MSA 9.2325(6), as it read when the rule was promulgated or as it read at the time of the hearing, pursuant to the 1980 amendment. If the rule should incorporate the statute as it existed in 1976, petitioner was entitled to a hearing within 30 days from the date his request for hearing was received, and he should prevail on this appeal. If, on the other hand, the rule should incorporate the statute as amended by 1980 PA 515, petitioner was entitled only to a hearing "within a reasonable time" after his request for hearing was made, and petitioner should not prevail. We believe the rule should be construed so as to incorporate the statute as it read at the time of the hearing, i.e., to require a hearing within a reasonable time.

MCL 257.625f(1)-(4); MSA 9.2325(6)(1)-(4) authorizes the secretary to suspend the driver's license of any person arrested for operating a motor vehicle under the influence of liquor or while impaired who refuses to take a chemical test on request. However, before the secretary may act on such a refusal, a driver is afforded the right to request a hearing before the Driver License Appeal Division.

Administrative Code Rule 257.33, 1979 AC, R 257.33, which became effective in November of 1976, provides:

"(1) After a timely and proper request for hearing, the administrator shall schedule a hearing to be held within a reasonable time, except as provided by section 625f of the act." (Emphasis added.)

At the time this rule was promulgated, § 625f of the code, MCL 257.625f; MSA 9.2325(6), provided, in part:

"(2) If a hearing is requested, the department shall hold such hearing within 30 days of receipt of such request in the same manner and under the same conditions as provided in section 322." (Emphasis added.)

Section 625f was amended in 1980, by 1980 PA 515. Subsection 2 of the amended section deleted the requirement that the hearing be held within 30 days of receipt of the request for a hearing:

"(2) If a hearing is requested, the secretary of state shall hold the hearing in the same manner and under the same conditions as provided in section 322. * * *."

We find § 31 of the Administrative Procedures Act, MCL 24.231; MSA 3.560(131), controlling. Subsection 5 of that section provides:

"(5) A rule may be amended or rescinded by another rule which constitutes the whole or a part of a filing of rules or as a result of an act of the legislature."

In Henderson v Memphis Community School Dist, 57 Mich App 770, 776; 226 NW2d 725 (1975), this Court noted with respect to this section:

"[W]e interpret [MCL 24.231(5); MSA 3.560(131)(5)] as an exercise of the legislative authority to modify or abrogate administrative rules if it so desires. The Legislature would have to act specifically to alter or rescind an administrative rule * * *." (Emphasis in Henderson.)

We believe that in the instant situation the Legislature specifically altered Rule 257.33 by amending § 625f to delete the requirement that the hearing be scheduled within a specific period of time.

The secretary points out that this Court, in construing a statute or rule, may look to extrinsic factors, including bill analyses, to determine legislative intent. Bennetts v State Employees Retirement Board, 95 Mich App 616; 291 NW2d 147 (1980). The secretary contends that the intent of the Legislature can be gleaned from the analysis of House Bill 5040, which later became § 625f of 1980 PA 515. The bill analysis states, in pertinent part:

"Presently, a hearing requested by a person arrested for driving under the influence of liquor who refused to submit to a chemical test must be held within 30 days after the request is made. However, around 25-30 percent of these hearings are rescheduled at a later date at the request of the person's attorney or because the person wishes to delay the hearing until he or she is tried for driving under the influence of liquor. Furthermore, in some rural areas of the state, hearing officers currently spend a considerable number of hours going from place to place to hold one or two hearings at a time. By removing the requirement that such hearings be held within 30 days, House Bill 5040 would enable the Department of State to schedule hearings in a more efficient manner."

It appears to this Court that the Legislature recognized that the secretary needed more than 30 days to schedule and conduct implied consent hearings and that the Legislature therefore amended § 625f to enable the department to schedule hearings in a more efficient manner. We thus conclude that Rule 257.33 was amended as a result of an act of the Legislature.

In addition, in construing a statute or rule this Court should accord great deference to the state agency's interpretation of that statute or rule. Magreta v Ambassador Steel Co, 380 Mich 513; 158 NW2d 473 (1968). While not part of the record, the secretary indicates in his brief that for the past four and a half years he has interpreted the 1980 amendment of § 625f to remove the 30-day limit on implied consent hearings and has been conducting hearings within a reasonable time.

We believe that this is the most reasonable construction of the rule.

The lower court's order denying petitioner's restoration of driving privileges is affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.