61-8-403. Right of appeal to court. (1) Within 30 days after notice of the right to a hearing has been given by a peace officer, a person may file a petition to challenge the license suspension or revocation in the district court in the county where the person resides or in the county i where the arrest was made.
     (2) The court has jurisdiction and shall set the matter for hearing. The court shall give at least 10 days' written notice of the hearing to the county attorney of the county where the appeal is filed and to the city attorney if the incident leading to the suspension or revocation resulted in a charge filed in a city or municipal court. The county attorney or city attorney may represent the state. If the county attorney and the city attorney cannot agree on who will represent the state, the county attorney shall represent the state.
     (3) Upon request of the petitioner, the court may order the department to return the seized license or issue a stay of the suspension or revocation action pending the hearing.
     (4) (a) The court shall take testimony and examine the facts of the case, except that the issues are limited to whether:
     (i) a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two;
     (ii) the person was placed under arrest; and
     (iii) the person refused to submit to the test or tests.
     (b) The court shall determine whether the petitioner is entitled to a license or whether the petitioner's license is subject to suspension or revocation.
     (5) This section does not grant a right of appeal to a state court if a driver's license is initially seized, suspended, or revoked pursuant to a tribal law or regulation that requires alcohol or drug testing of motor vehicle operators.

     History: En. Sec. 2, Ch. 131, L. 1971; R.C.M. 1947, 32-2142.2(a); amd. Sec. 2, Ch. 103, L. 1981; amd. Sec. 2, Ch. 602, L. 1983; amd. Sec. 4, Ch. 659, L. 1983; amd. Sec. 9, Ch. 698, L. 1983; amd. Sec. 1, Ch. 503, L. 1985; amd. Sec. 3, Ch. 789, L. 1991; amd. Sec. 1, Ch. 388, L. 1993; amd. Sec. 2, Ch. 564, L. 1993; amd. Sec. 2, Ch. 444, L. 1995.