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: Crothers, Justice.
[¶1] Brandan Martin appeals from a district court judgment affirming the North Dakota Department of Transportation's suspension of his driving privileges for 91 days. We affirm the judgment.
[¶2] A sobriety checkpoint was established on July 3, 2008, near Dickinson, North Dakota. The stated purpose of the checkpoint was to deter drunk driving, to create a safe driving environment and to increase awareness of the problems caused by drunk driving. Martin entered the checkpoint shortly before 10:00 p.m. and was met by a North Dakota Highway Patrol Officer. Although Martin stated he had not been drinking, the officer asked Martin to pull into a nearby parking lot after observing an unopened can of beer in Martin's center console and smelling an odor of alcohol emanating from Martin's vehicle.
[¶3] After Martin parked his vehicle, he joined the officer in his squad car, where the officer again smelled the odor of alcohol. Martin submitted to field sobriety testing, where he failed the horizontal gaze nystagmus, the alphabet, the counting backwards and the finger-dexterity tests. The officer had Martin spit out his chewing tobacco and visually inspected Martin's mouth to confirm it was empty before administering an S-D2 breath test on Martin. Martin registered a .114 percent blood alcohol concentration ("BAC") and was placed under arrest for driving under the influence of alcohol with a BAC of .08 percent or greater. Once at Stark County Jail, Martin asserted his mouth was empty and was given an Intoxilyzer breath test, registering a .10 percent BAC.
[¶4] Martin was cited for driving under the influence of alcohol, and his driving privileges were suspended for 91 days. An administrative hearing was held at Martin's request, and the hearing officer ruled the checkpoint was constitutionally valid and the result of Martin's chemical test was admissible. Martin appealed to the district court, which affirmed the hearing officer's decision and upheld the suspension of Martin's driving privileges.
[¶5] Martin argues his stop at the checkpoint resulted in an unconstitutional seizure. The administrative agency's findings of fact are given great deference, and this Court will not make its own findings of fact or substitute its own judgment in place of the agency's. Borowicz v. N.D. Dep't of Transp., 529 N.W.2d 186, 187 (N.D. 1995). This Court's review is limited to ascertaining "whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record." Id. (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979)). However, the "standard of review for a claimed violation of a constitutional right is de novo." State v. Treis, 1999 ND 136, ¶ 11, 597 N.W.2d 664.
[¶6] Police checkpoints are not per se unconstitutional under the Fourth Amendment of the United States Constitution or Article I, Section 8 of the North Dakota Constitution. Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990); State v. Everson, 474 N.W.2d 695 (N.D. 1991); and City of Bismarck v. Uhden, 513 N.W.2d 373 (N.D. 1994). A checkpoint seizure is unconstitutional if it is unreasonable. State v. Albaugh, 1997 ND 229, ¶ 6, 571 N.W.2d 345. The reasonableness of a checkpoint stop is analyzed using a three-prong balancing test. Sitz, 496 U.S. at 448-49; Uhden, 513 N.W.2d at 378. The three prongs to be weighed are "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Brown v. Texas, 443 U.S. 47, 50- 51 (1979).
[¶7] Martin concedes the State's interest in decreasing drunk driving is a valid public concern. Indeed, "[n]o one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion." Sitz, 496 U.S. at 451. The gravity of the public concern addressed by a checkpoint seizure is measured by the magnitude of the societal harm caused by a specific problem. Everson, 474 N.W.2d at 700-01.
[¶8] In Everson, we noted the societal harm caused by drug trafficking to be "one of the greatest problems affecting the health and welfare of our population." 474 N.W.2d at 701 (quoting Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 668 (1989)). In Albaugh, we recognized the State's "compelling interest in managing and preserving its wildlife" and upheld a fish and game checkpoint intended to enforce the game laws of North Dakota. 1997 ND 229, ¶ 9, 571 N.W.2d 345. We also have recognized the societal harm caused by unsafe drivers and unsafe vehicles. State v. Wetzel, 456 N.W.2d 115, 120 (N.D. 1990). In Wetzel, we upheld a traffic safety checkpoint and "recognized that `States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence the licensing, registration, and vehicle inspection requirements are being observed.'" Id. at 118 (quoting Delaware v. Prouse, 440 U.S. 648, 658 (1979)).
[¶9] Based on evidence in the record and the magnitude of social harm caused by drunk driving, the hearing officer did not err in finding the checkpoint addressed a substantial public concern.
[¶10] Martin argues the checkpoint did not advance the public's interest in decreasing drunk driving because no public input was involved in planning the checkpoint. Martin's argument is unavailing. While public input in the planning stages of checkpoints may be useful and is encouraged, we have never required public input as a constitutional requirement for a valid checkpoint. Uhden, 513 N.W.2d at 378. In Uhden, we upheld a temporary sobriety checkpoint as constitutional under our three prong balancing test. Id. at 378-79. One of the facts of the Uhden checkpoint advancing the public's interest and, therefore, weighing in favor of constitutionality, was input from a citizens' advisory committee on the development of the checkpoint's operational guidelines. Id. at 378. While citizen input is encouraged in the planning of checkpoints and may be considered as a factor in determining the degree to which the checkpoint advances a public interest, such input remains only a factor and is not singularly determinative of constitutionality. Id.
[¶11] The second prong of the Brown test requires the courts to determine the degree to which the seizure advances the public interest. 443 U.S. at 50-51. This prong is not meant to allow the judicial system to second-guess techniques used by law enforcement officials to achieve the State's interests. Sitz, 496 U.S. at 453. The decision between reasonable alternative law enforcement techniques is to be left with politically accountable individuals "who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers." Id. at 453-54. Rather, the degree to which a checkpoint advances the public interest calls for a searching examination of the checkpoint's effectiveness. Id. at 454.
[¶12] An objective measure of a checkpoint's effectiveness is empirical data on the ratio of vehicles stopped to the number of arrests related to the purpose of the checkpoint. Sitz, 496 U.S. at 455; Everson, 474 N.W.2d at 702-03. Although such data is not the only means of proving effectiveness, it can establish a checkpoint as constitutionally effective.
[¶13] When the United States Supreme Court entertained a challenge to a permanent immigration checkpoint in United States v. Martinez-Fuerte, the Court relied on empirical data to find the checkpoint effective. 428 U.S. 543, 554 (1976). The purpose of the checkpoint in Martinez- Fuerte was to detect and apprehend illegal immigrants, and the Court found the checkpoint effective because 0.5 percent of the vehicles stopped at the checkpoint contained illegal immigrants. Id. The United States Supreme Court again relied on empirical data to determine a checkpoint's effectiveness in Sitz. 496 U.S. at 454-55. The checkpoint in Sitz was intended to eradicate the problem ...