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Pesanti v. North Dakota Dept. of Transp.

Supreme Court of North Dakota

November 21, 2013

Dante PESANTI, Petitioner and Appellee
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

Page 852

[Copyrighted Material Omitted]

Page 853

Jeff L. Nehring, Williston, ND, for petitioner and appellee.

Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellant.

MARING, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from the district court's judgment reversing the administrative hearing officer's decision to suspend Dante Pesanti's driving privileges for 180 days for driving under the influence of alcohol. We conclude a reasoning mind reasonably could have concluded the administrative hearing officer's finding that Officer Schrage had a reasonable and articulable suspicion that Pesanti had committed a violation is supported by the weight of the evidence on the entire record. Therefore, we reverse the district court's judgment and reinstate the administrative hearing officer's decision to suspend Pesanti's driving privileges.

I

[¶ 2] On April 7, 2012, Officer Schrage arrested Pesanti for driving under the influence and, subsequently, issued a report and notice to suspend Pesanti's driving privileges. The report and notice stated Pesanti had a blood-alcohol concentration of .23 percent. Pesanti requested and received an administrative hearing.

[¶ 3] At the administrative hearing, Officer Schrage testified that, at approximately 1:45 a.m. on April 7, 2012, he was in the Tioga Motors parking lot when he heard the revving of an engine, as if the engine was accelerating very hard. A vehicle drove by the parking lot making the same sounds heard earlier, and Officer Schrage proceeded to follow the vehicle for approximately one and a half miles. Officer Schrage observed the vehicle, later determined to be driven by Pesanti, drift from the centerline to the fog line more than five times but never cross the centerline or fog line. Officer Schrage testified the swerving was continuous and gradual, rather than abrupt, and Pesanti appeared to have great difficulty maintaining the vehicle's position within the lane. Officer Schrage observed Pesanti fail to maintain a steady speed. Pesanti would accelerate toward the speed limit and then slow, but Pesanti never sharply or rapidly accelerated. Pesanti's speed stayed between 40 to 45 miles per hour in a 45 miles-per-hour zone. Officer Schrage observed Pesanti successfully negotiate a gentle S curve. Officer Schrage testified he did not observe Pesanti violate any traffic laws. Officer Schrage testified that based on his observations, training, and experience, he believed Pesanti may have been impaired and he initiated a traffic stop.

[¶ 4] The administrative hearing officer specifically found that " at approximately 1:45 AM" Officer Schrage " heard a vehicle revving its engine, accelerate very hard, shift gears and again accelerate very hard[,]" and observed the vehicle " beg[in] to swerve from the center line to the fog line without crossing the lines. The vehicle behavior was continuous, back and forth, for approximately 1 1/2 miles." The administrative hearing officer concluded that Pesanti's weaving, observed by Officer Schrage, " was significantly more pronounced than the ‘ slight’ weaving described in Salter v. [N.D. Dep't] of Transp., 505 N.W.2d 111, 114 (N.D.1993)[,]" and " [b]ased upon Officer Schrage's training and experience," provided Officer Schrage with a reasonable and articulable basis to stop Pesanti's vehicle. The administrative hearing officer suspended Pesanti's driving privileges for 180 days.

Page 854

[¶ 5] Pesanti appealed to the district court. The district court reversed the administrative hearing officer's decision, concluding Officer Schrage's observations were sufficient grounds to follow Pesanti and observe him further, however, Officer Schrage did not observe Pesanti violate a traffic law that would justify the stop. The Department appeals the district court's decision.

[¶ 6] On appeal, the Department argues the district court erred in reversing the administrative hearing officer's suspension of Pesanti's driving privileges. The Department argues Officer Schrage's observations constituted a ...


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