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Spence William Koenig v. North Dakota Department of Transportation

January 18, 2012

SPENCE WILLIAM KOENIG,
PETITIONER AND APPELLANT
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION,
RESPONDENT AND APPELLEE



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

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

N.D. Supreme CourtKoenig v. N.D. Department of Transportation, 2012 ND 18

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Spence William Koenig appealed from a district court judgment affirming a Department of Transportation hearing officer's decision suspending his driving privileges for ninety-one days. We affirm.

I.

[¶2] This appeal was submitted on essentially undisputed facts as found by the hearing officer. On January 16, 2011, Trooper Jeremy Rost pulled over Koenig's vehicle for speeding and expired tabs. Koenig exhibited signs of intoxication. Koenig agreed to perform field sobriety tests, passing the alphabet test and failing the remaining tests. At 12:47 a.m., Trooper Rost arrested Koenig for driving under the influence of intoxicating liquor. Koenig agreed to submit to a blood test. Trooper Rost testified he informed Koenig's girlfriend he would be released upon a promise to appear when someone sober and over the age of eighteen came to pick him up, and Koenig's girlfriend stated she was on the phone arranging a ride for him. Trooper Rost testified he allowed Koenig to use Rost's cell phone to speak with his attorney on the way to the law enforcement center and while at the center. Upon arriving at the law enforcement center, Koenig requested an independent blood test. Trooper Rost told Koenig he would be able to get an independent test as soon as someone came to pick him up because he was being released upon a promise to appear. Koenig then submitted to a blood draw at the law enforcement center at 1:21 a.m., the results of which showed Koenig's blood alcohol level was .12 percent. Correctional Officer Chris Waller testified Koenig was brought into booking, where he repeated his request for an independent blood test. Officer Waller testified he found the number for St. Alexius hospital, and Koenig was allowed to use the phone to call the hospital about the test. Koenig testified he informed Officer Waller he needed to go in to the hospital to get the test. Officer Waller testified he then placed Koenig in a holding cell, and Koenig stated his girlfriend was on her way. Officer Waller testified it occurred to him after some time had passed that Koenig's ride was not coming, so he asked Koenig if he wanted to make a phone call, which Koenig declined and stated his girlfriend was on her way. Officer Waller testified Koenig fell asleep and awoke at approximately 4:00 a.m., at which time he tried to call his girlfriend. No one arrived to pick up Koenig, and he was released at approximately 5:00 a.m when his blood alcohol level was below the legal limit. Koenig testified he never asked for a ride to the hospital, and no one offered to take him to the hospital.

[¶3] Trooper Rost issued Koenig a report and notice of intent to suspend his driving privileges under N.D.C.C. § 39-20-03.1. Koenig requested a hearing, which was held on February 25, 2011. At the hearing, Koenig argued the blood test results should be suppressed because he was denied a reasonable opportunity to obtain an independent test. The hearing officer received the test results into evidence, finding Koenig was allowed a reasonable opportunity to obtain an independent test. The hearing officer suspended Koenig's driving privileges for ninety-one days. Koenig appealed the hearing officer's decision to the district court, and the district court affirmed the suspension.

II.

[¶4] We review Department decisions to suspend driving privileges under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, and must affirm the 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 its findings of fact. 7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant. 8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge. N.D.C.C. § 28-32-46. This Court reviews the Department's findings and decisions, but the district court's analysis is entitled to respect if it is sound. Lange v. N.D. Dep't of Transp., 2010 ND 201, ¶ 5, 790 N.W.2d 28.

We do not make independent findings of fact or substitute our judgment for that of the agency when reviewing an administrative agency's factual findings. We determine only whether a reasoning mind reasonably could have determined the factual conclusions reached were proved by the weight of the evidence from the entire record. If the hearing officer's findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law, we will not disturb the ...


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