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Abernathey v. Dep't of Transportation

July 9, 2009

DEAN ALLAN ABERNATHEY, PETITIONER AND APPELLANT
v.
DEPARTMENT OF TRANSPORTATION, RESPONDENT AND APPELLEE



Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

AFFIRMED.

[¶1] Dean Allan Abernathey appeals from a judgment affirming the Department of Transportation's suspension of his driver's license for being in actual physical control of a vehicle while under the influence of alcohol. Because we conclude the Department correctly determined a law enforcement officer did not violate Abernathey's Fourth Amendment rights, we affirm the judgment.

I.

[¶2] At approximately 3:00 a.m. on June 10, 2008, Bottineau County Deputy Sheriff Matthew Keesler received a call from dispatch at his home in Westhope informing him that people were causing a disturbance at a Lansford bar which is connected to a motel and which was supposed to have closed at 1:00 a.m. According to Keesler, the dispatcher told him people were "hoot and hollering in the bar" and "disturbing motel patrons." Keesler got dressed and drove for 35 to 40 minutes to Lansford. The hearing officer described what transpired in his findings of fact:

Upon pulling into the parking lot, at about 4:00 a.m., Keesler noticed one pickup. Keesler had his window down to listen and heard the pickup start up and shut off again. The interior light was on in the pickup and Keesler could see two people in the pickup. Keesler stopped his patrol vehicle, without activating his red lights, parking it off set from the pickup so as not to block its path. Keesler approached and spoke to the driver. The driver's eyes appeared bloodshot. Keesler saw that the pickup's door was locked, so he asked the man in the driver's seat, Dean Allan Abernathey, if he would please unlock the vehicle. Abernathey slurred his speech as he asked Keesler what was going on? Keesler again asked Abernathey to unlock his door and to exit the vehicle. Abernathey did so, but he had poor balance as he stepped out. Keesler had Abernathey dispose of his cigarette. There was a strong odor of an alcoholic beverage. Keesler explained why he was there. Abernathey became belligerent about being bothered, swearing and saying they were headed home.

[¶3] Keesler had Abernathey perform field sobriety tests and handcuffed and placed the passenger, Abernathey's brother, into the back seat of the patrol car after he began causing a disturbance. Abernathey failed some of the field sobriety tests and an S-D2 onsite screening breath test and Keesler eventually placed him under arrest for actual physical control while under the influence of alcohol.

[¶4] Following an administrative hearing, the hearing officer suspended Abernathey's driver's license for two years. The hearing officer rejected Abernathey's claim that his Fourth Amendment rights were violated. The hearing officer concluded no constitutional violation occurred because Keesler did not "stop" or "seize" Abernathy until the second time Keesler asked him to exit the vehicle, and by then, Keesler had reasonable suspicion that Abernathey was in actual physical control while under the influence of alcohol. The district court affirmed the Department's decision.

II.

[¶5] Abernathey contends his Fourth Amendment rights were violated because Keesler lacked reasonable suspicion or probable cause to approach his pickup.

[¶6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of an administrative suspension of a driver's license. Brewer v. Ziegler, 2007 ND 207, ¶ 4, 743 N.W.2d 391. We must affirm 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 proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by ...


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