61-11-210. Appeals. (1) A person declared to be a habitual traffic offender may file a petition in the district court in the county in which the person resides, or in Lewis and Clark County if the person is not a resident of the state, challenging the declaration and revocation. The petition must be filed within 30 days after the person received notice under 61-11-204. Receipt under 61-11-204 is presumed to be on the third day after the date of mailing. After the petition is filed, a copy must be promptly served on the county attorney of the county in which the petition was filed. The county attorney shall represent the department in the proceeding. Proof of service must be filed with the clerk of the court prior to a hearing or grant of relief. Untimely service or lack of service upon the county attorney waives the right to a hearing. The filing of the petition does not stay enforcement of the revocation.

(2) Upon receipt from the county attorney of notice of the petition, the department shall give the county attorney a certified record of the convictions and bond forfeitures upon which the habitual traffic offender declaration was based.

(3) A hearing date must be set and at least 10 days' notice of the date must be given to the parties. The scope of the hearing is limited to whether the petitioner is the person named in the certified record of convictions and bond forfeitures upon which the habitual traffic offender declaration was based and whether the petitioner is a habitual traffic offender. The petitioner has the burden of proving that the department's actions are invalid or that its records are erroneous.

(4) If the court finds that the petitioner is the person declared by the department to be a habitual traffic offender and that the petitioner is a habitual traffic offender, the court shall dismiss the petition. If the court finds that the petitioner is not the person declared by the department to be a habitual traffic offender or that the petitioner is not a habitual traffic offender, the court shall grant the petition and provide the petitioner with appropriate relief, which must include an order that the department reimburse the petitioner for court fees paid by the petitioner.

(5) Upon a finding adverse to the petitioner, the clerk of the court shall file with the department a copy of the court's order, together with the petitioner's driver's license if the license has not been previously surrendered. If the petition is granted, the clerk of the court shall file with the department a copy of the court's order granting the petition. The order must state the grounds upon which the relief was granted and must specify the court findings on the conviction points, if any, that have been accrued by the petitioner. The department shall then correct the petitioner's driving record to comport with the court's specific findings.

History: En. 31-184 by Sec. 10, Ch. 362, L. 1974; R.C.M. 1947, 31-184; amd. Sec. 1, Ch. 503, L. 1985; amd. Sec. 3, Ch. 338, L. 1995; amd. Sec. 122, Ch. 596, L. 2005.