Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
[¶1] The North Dakota Department of Transportation appeals from a district court judgment reversing an administrative hearing officer's decision that suspended the driving privileges of Chance Steinmeyer for 91 days. Because a reasoning mind reasonably could conclude that the arresting officer ascertained a 20-minute waiting period before administering the Intoxilyzer test, we reverse the district court judgment and reinstate the Department's decision.
[¶2] On October 4, 2008, at 10:30 p.m., a Dickinson police officer stopped Steinmeyer's vehicle for an equipment violation. After approaching the vehicle and speaking with Steinmeyer, the officer smelled an alcoholic beverage odor emanating from inside the vehicle. Although Steinmeyer denied consuming alcohol, the officer brought Steinmeyer back to his patrol vehicle. The officer determined the alcoholic odor was coming from Steinmeyer's mouth.
[¶3] The officer conducted several field sobriety tests and an S-D2 onsite screening test. The officer testified that after ascertaining the three-minute waiting period, he administered the S-D2 test at 10:39 p.m., which estimated Steinmeyer had an alcohol concentration of.048 percent by weight. The officer also testified during cross-examination that he had checked Steinmeyer's mouth before administering the S-D2 test at 10:34 p.m. The officer informed Steinmeyer that he would be cited for having consumed alcohol as a minor, and had Steinmeyer submit to an Intoxilyzer test at the law enforcement center. The officer testified he administered the Intoxilyzer test after ascertaining a 20- minute waiting period. The initial Intoxilyzer test results showed that Steinmeyer had an alcohol concentration of.03 percent by weight at 10:53 p.m.
[¶4] The officer issued Steinmeyer a report and notice form, including a temporary operator's permit, for driving under 21 years of age while having alcohol or drugs in his system. Steinmeyer requested an administrative hearing before the Department. Following an October 2008 hearing, the hearing officer issued findings of fact, conclusions of law, and a decision suspending Steinmeyer's driving privileges for 91 days. Steinmeyer appealed the administrative decision to the district court.
[¶5] In January 2009, the district court reversed the administrative suspension of Steinmeyer's driving privileges. The court concluded there was no evidence in the record "that would indicate that the officer was able to say one way or another whether or not there was something in the subject's mouth [before 10:34 p.m.]. Thus, the only evidence is that at 10:34 the officer started a time frame under which he could state there was nothing in the subject's mouth." Since Steinmeyer had provided his first Intoxilyzer breath sample at 10:53 p.m., the court concluded the test was commenced too early and the approved method was not followed. The court held the hearing officer erred in admitting the Intoxilyzer test results into evidence and reversed the suspension of Steinmeyer's driving privileges. The Department appealed from the district court's judgment.
[¶6] Steinmeyer timely requested a hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 39-20-06. The Department filed a timely notice of appeal from the district court judgment under N.D.C.C § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-32- 49.
[¶7] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative suspension of a driver's license. Sturn v. Director, North Dakota Dep't of Transp., 2009 ND 39, ¶ 6, 763 N.W.2d 515. This Court is required to affirm an administrative agency decision 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 [N.D.C.C. ch. 28-32] have not been complied with in the ...