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Lange v. North Dakota Dep't of Transportation

October 25, 2010

VANESSA CHRISTINE LANGE, APPELLEE
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge. REVERSED.

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

[¶1] The North Dakota Department of Transportation ("DOT") appeals the district court's reversal of a DOT hearing officer's decision to suspend Vanessa Christine Lange's driving privileges. Lange's driving privileges were suspended for ninety-one days after she was arrested for driving under the influence of intoxicating liquor. We reverse the district court judgment and affirm the suspension of Lange's driving privileges.

I.

[¶2] Mandan City Police Officer Michael Kapella stopped a vehicle driven by Vanessa Christine Lange on September 9, 2009 after observing Lange's vehicle drift on a roadway. After observing Lange's watery and bloodshot eyes and after Lange admitted to having one drink several hours earlier, Officer Kapella asked Lange to perform several field sobriety tests. Lange did not satisfactorily perform the field sobriety tests. Lange spoke with her attorney on her cell phone during the stop. Lange took an SD-5 breath test which indicated her blood alcohol was above the legal limit and was arrested for driving under the influence of intoxicating liquor. Officer Kapella gave Lange the implied consent advisory while transporting Lange to the Morton County jail and requested she take a blood test to determine her blood alcohol content. Lange spoke with her attorney again at the jail and asked if she could go to a hospital to take a blood test. Officer Kapella informed Lange the standard procedure was for a nurse to come to the jail to take blood samples. The nurse took a blood sample from Lange, and the results showed her blood alcohol content was 0.16. There was no subsequent discussion on blood tests after the blood draw at the jail.

[¶3] An administrative hearing was held before a hearing officer on October 30, 2009. The only testimony at the hearing was given by Officer Kapella. The administrative hearing officer concluded Officer Kapella reasonably understood Lange requested the blood draw be conducted at a hospital instead of at the jail. The hearing officer determined Lange did not clearly communicate to Officer Kapella she wanted an independent blood test and no one impeded Lange's ability to obtain an independent test. The hearing officer ruled the blood test results admissible and suspended Lange's driving privileges for ninety-one days. Lange appealed the hearing officer's decision to the district court. The district court concluded Lange's questions about blood tests should have alerted Officer Kapella that Lange was possibly requesting information on an additional and independent test. The district court stated Officer Kapella should have attempted to clarify what Lange's intentions were, and since he did not, the district court reversed the hearing officer's decision.

II.

[¶4] The DOT argues Lange did not make a reasonable request for an additional and independent blood test. Lange contends her communications were sufficient, and a reasonable officer would have understood she wanted information on obtaining an independent test. Lange argues, given the surrounding circumstances, Officer Kapella should have asked her to clarify her intentions.

[¶5] This Court gives great deference to administrative agency decisions. Hawes v. N.D. Dep't of Transp., 2007 ND 177, ¶ 13, 741 N.W.2d 202. We review the agency's findings and decisions. Id. The district court's analysis is entitled to respect if its reasoning was sound. Id. This Court's review of an administrative suspension of a driver's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Abernathey v. Dep't of Transp., 2009 ND 122, ¶ 6, 768 N.W.2d 485 (citing Brewer v. Ziegler, 2007 ND 207, ¶ 4, 743 N.W.2d 391). We must affirm the administrative agency's 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 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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