Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
The opinion of the court was delivered by: Maring, Justice.
[¶1] The North Dakota Department of Transportation ("Department") appeals from a district court judgment reversing an administrative hearing officer's decision to suspend Matthew Richter's driver's license for 365 days for being in actual physical control of a motor vehicle while under the influence of alcohol. We conclude a police officer's actions in this case did not violate the Fourth Amendment of the United States Constitution. We reverse the judgment and remand for reinstatement of the hearing officer's decision.
[¶2] At about 1:24 a.m. on January 8, 2009, a Mandan police officer was on patrol in Mandan when he observed a single vehicle parked in the rear parking lot of a Mandan restaurant with the engine running and two people inside the vehicle. The officer testified he was suspicious because the restaurant had been closed for several hours and he knew the restaurant had been burglarized in the past. The officer testified he drove into the parking lot and parked his marked patrol car a short distance from the front passenger corner of the vehicle, but did not block its exit. According to the police officer, the headlights and "take-down" lights on his patrol car were on, and he described the "take-down" lights as "white clear lights, non-flashing lights, that are located on a light bar, on an emergency light white bar, and they're simply a . . . bright lights that shine in from a higher elevation into a . . . into a motor vehicle." [App. P. 4] The officer testified he did not have his emergency lights on, and he could not remember whether he used his spotlight. The passenger in the vehicle testified she remembered the patrol car's headlights shining on her, but she did not think the officer used a spotlight.
[¶3] According to the police officer, he was shining his flashlight into the interior of the vehicle as he approached the passenger side of the vehicle and made a circular hand gesture, directed at the passenger, to roll down the window. The officer testified he wanted to ask the occupants what they were doing there and the closed window made communication difficult. According to the passenger, she felt compelled to roll the window down out of respect for the police officer and she testified she did not believe they could have driven off. Once the window was rolled down, the officer detected the odor of alcohol emanating from the vehicle and noted the person in the driver's seat, Richter, had slightly bloodshot eyes and "thick" speech. Richter thereafter admitted drinking a "couple" of beers that evening, and he failed several field sobriety tests. Richter was arrested for being in actual physical control of a motor vehicle, and he consented to a blood test, which established a 0.15 percent blood alcohol concentration.
[¶4] The Department notified Richter of its intent to suspend his driving privileges. Richter requested an administrative hearing, which was held on March 4, 2009. The hearing officer rejected Richter's claim the police officer had violated his constitutional rights, concluding the officer's hand gesture was not a seizure under the Fourth Amendment and no seizure occurred until after the officer detected the odor of alcohol from inside the vehicle. The hearing officer found Richter's vehicle was not blocked, the officer did not activate flashing lights on his patrol car, the officer did not order Richter to do anything nor demand any response from him, Richter could have driven away at any time, and the officer's nonverbal gesture was not a seizure under the criteria enumerated in United States v. Mendenhall, 446 U.S. 544, 554 (1980), and under the Fourth Amendment. The hearing officer decided the police officer had reasonable grounds to arrest Richter and suspended his driver's license for 365 days. Richter moved for reconsideration. The hearing officer granted Richter's motion for reconsideration, but denied his requested relief on March 18, 2009.
[¶5] Richter appealed to the district court, claiming the hearing officer erred in deciding the police officer's actions were not a seizure under the rationale of Wibben v. North Dakota State Highway Comm'r, 413 N.W.2d 329, 331 (N.D. 1987). In Richter's administrative appeal, he submitted the district court's May 12, 2009, order in the City of Mandan's criminal prosecution against him, which suppressed evidence seized as a result of the police officer's actions. In that criminal prosecution, the district court relied on Wibben, at 331, to hold the police officer's "request/order to roll down the window was a stop/seizure . . . without reasonable suspicion" in violation of the Fourth Amendment. In Richter's appeal in this administrative proceeding, the district court reversed the hearing officer's decision, agreeing with the decision in the criminal prosecution and concluding the police officer's actions constituted an unreasonable search and seizure in violation of the Fourth Amendment.
[¶6] Our review of an administrative agency's decision to suspend a driver's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Abernathey v. Department of Transp., 2009 ND 122, ¶ 6, 768 N.W.2d 485. We affirm the agency order 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 its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to ...