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Sturn v. Director

April 2, 2009

KEVIN JOHN STURN, PETITIONER AND APPELLEE
v.
DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, RESPONDENT AND APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice

REVERSED.

[¶1] The North Dakota Department of Transportation ("Department") appealed from a district court judgment reversing an administrative hearing officer's decision that suspended the driving privileges of Kevin Sturn for 91 days following his arrest for driving under the influence of intoxicating liquor. Because we conclude the arresting officer had a reasonable and articulable suspicion to justify stopping Sturn's vehicle, we reverse the judgment and reinstate the Department's decision.

I.

[¶2] On March 2, 2008, at approximately 12:39 a.m., North Dakota Highway Patrol Officer Jeremiah Bohn was traveling westbound while patrolling Memorial Bridge between Bismarck and Mandan when he noticed a vehicle approaching him "rather quickly." Officer Bohn testified that he then activated his patrol car's moving radar out of the rear antenna and identified the approaching vehicle as traveling 36 miles per hour in a 25-mile-per-hour zone. Officer Bohn pulled his patrol vehicle over and allowed the approaching vehicle to pass because they were in a construction zone which was "very constricted." After allowing the vehicle to pass, Officer Bohn activated his patrol vehicle's emergency lights and stopped the vehicle at the nearest safe spot, which was at the entrance ramp to Interstate 94, heading southbound into Mandan.

[¶3] Upon approaching the stopped vehicle, Officer Bohn identified the driver as Sturn and noticed an odor of an alcoholic beverage. Officer Bohn observed that Sturn had bloodshot, watery eyes. When he asked for Sturn's license, registration, and insurance card, Officer Bohn could see that Sturn was having difficulty and was fumbling with the documents as he retrieved them. Officer Bohn testified that he then asked Sturn to exit his vehicle and sit in the front seat of his patrol car. Once inside Officer Bohn's car, Officer Bohn noticed that the odor of an alcoholic beverage persisted.

[¶4] Officer Bohn had Sturn perform several field sobriety tests, and Sturn failed the horizontal gaze nystagmus ("HGN") test, the backwards count test, and the finger count test. Officer Bohn then administered the SD-2 on-site screening test, and the device estimated that Sturn had a blood alcohol content in excess of the legal limit. Officer Bohn placed Sturn under arrest for driving while under the influence of an intoxicating liquor. Sturn agreed to submit to a blood test, and Sturn's blood sample was found to have an alcohol concentration of .09 percent by weight. Officer Bohn issued Sturn a Report and Notice form including a temporary operator's permit following his arrest. Sturn requested an administrative hearing before the Department.

[¶5] After a March 2008 hearing, an administrative hearing officer issued findings of fact, conclusions of law, and order suspending Sturn's driving privileges for 91 days. Sturn appealed the administrative decision to the district court. In June 2008, the district court reversed the Department's administrative suspension of Sturn's driving privileges. The district court held that there was "no foundational evidence that [Officer Bohn's] radar was working properly and that [Officer Bohn] was certified to operate the radar device. Without the foundational evidence, [Officer Bohn's] testimony concerning the speed of Sturn's vehicle is an unsubstantiated conclusion and did not provide a reasonable and articulable suspicion that Sturn was violating the law." The district court entered judgment on June 30, 2008, and the Department appealed.

II.

[¶6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative suspension of a driver's license. Richter v. North Dakota Dep't of Transp., 2008 ND 105, ¶ 6, 750 N.W.2d 430. An administrative agency decision must be affirmed unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the ...


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