Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
Osaba v. N.D. Department of Transportation,
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Kapsner, Justice.
[¶1] Christopher Osaba appeals from a district court judgment affirming the administrative revocation of his driving privileges for one year following his arrest for driving under the influence ("DUI"). We conclude testimony was properly admitted to establish probable cause for Osaba's arrest, and we affirm.
[¶2] On March 6, 2011, MedCenter One Hospital security staff called police to report disorderly conduct by an individual "running up and down the hallways punching their signs and damaging property." In response to the report, Officer Tim Sass arrived at the hospital, where two security guards were standing at the entrance with Osaba. Sass stated he asked Osaba for his name, to which Osaba replied, "Joshua." Sass noted Osaba's "speech was a little slurred," and asked for Osaba's name again. Sass stated Osaba did not respond, but Sass was able to identify Osaba from the driver's license he was carrying. When Sass began to question Osaba regarding the disorderly conduct report, Sass observed "the odor of alcohol was coming off of his person and his breath. His eyes appeared to be bloodshot and glossy, and . . . his balance was swaying back and forth." Sass noted he asked Osaba how he arrived at the hospital, and Osaba indicated a friend had brought him there. Sass stated Osaba claimed he was at the hospital to visit a friend named Blake Park; the hospital had no record of a patient by that name, and there was no response to a page for Blake Park.
[¶3] Officers Brocker and Heinert then arrived at the hospital. While Sass remained with Osaba, Brocker reviewed security video from hospital cameras and reported to Sass that a video showed Osaba driving to the hospital in the truck that was parked in the hospital entranceway. Sass stated he asked Osaba if his truck was parked in the entranceway of the hospital, and Osaba said it was not. After checking the license plate of the truck parked in the entranceway, Sass discovered the truck was registered to Osaba and his wife. Sass stated Osaba continued to assert the truck was not his, claiming it was registered only to his wife. Sass then placed Osaba under arrest for disorderly conduct. Sass noted, "As we exited the hospital, I asked if we could have permission to move the truck into an actual parking spot, as we had found keys on his possession[,]" but Osaba did not grant permission.
[¶4] After arriving at the police station, Sass asked Osaba to perform field sobriety tests. Sass determined Osaba failed various field sobriety tests and asked Osaba to submit to an S-D5 breath screening test. According to Sass, Osaba agreed but did not provide adequate breath samples on his first two attempts. Sass stated he informed Osaba that if he failed to provide an adequate breath sample, he would be deemed to have refused the test. Osaba reportedly did not provide an adequate sample on his third attempt, and Sass concluded Osaba's actions amounted to a refusal to submit to the test. Sass then informed Osaba he was also under arrest for DUI and asked Osaba to submit to a chemical intoxilyzer test. Osaba refused.
[¶5] The North Dakota Department of Transportation ("DOT") notified Osaba of its intent to revoke his driving privileges, and Osaba requested a hearing. At an administrative hearing held April 5, 2011, Sass testified regarding Brocker's statements that a hospital security video showed Osaba driving. Osaba objected to this testimony as hearsay, and the hearing officer sustained the objection. Sass also testified as to the basis of his decision to arrest Osaba for DUI, listing contributing factors as "the odor of the alcohol on his breath, . . . his balance, swaying, his bloodshot eyes, and the results of all the standard field sobriety testing[,]" along with Brocker's statements regarding the video footage. Osaba again objected to Sass's testimony regarding Brocker's statements. The hearing officer overruled the objection, stating, "For purposes of determining whether or not there's probable cause to make an arrest, the statement is not hearsay." Sass noted he later received a video from the hospital that did not show Osaba driving, but Sass was unsure if the video he viewed was the same video Brocker viewed the night of Osaba's arrest. Following the hearing, the hearing ...