Douglas B. Anderson, Office of Attorney General, Bismarck, ND, for appellant.
Tammy Renee Wampler; no appearance.
[¶ 1] The North Dakota Department of Transportation (" Department" ) appeals from a district court judgment reversing an administrative hearing officer's decision suspending Tammy Renee Wampler's driving privileges. Because we hold inclusion of the phrase " by weight" in the " Test Results" portion of a law enforcement officer's certified written report under N.D.C.C. § 39-20-03.1(4) is not necessary to satisfy N.D.C.C. § 39-20-03.1, we reverse the district court judgment and reinstate the administrative hearing officer's decision.
[¶ 2] On April 18, 2013, a Jamestown city police officer received a call regarding an intoxicated driver. A description of the
vehicle and license plate was provided. The officer arrived on the scene, located the vehicle, and observed it weaving between lanes. The officer initiated his overhead lights, but the vehicle continued to drive for almost half a mile before it came to a stop, and it did so only after the officer turned on his siren. The officer approached the vehicle and spoke to the driver, Wampler, who was the only occupant. While speaking with Wampler, the officer observed that she had glossy/watery eyes, slurred speech, slow movements, and a strong odor of alcohol. Wampler admitted to consuming alcohol and agreed to submit to field sobriety tests. The officer administered three field sobriety tests, and Wampler failed two of them and could not complete the other. Wampler submitted to an on-site chemical screening test, which indicated an alcohol concentration level of at least .08. Wampler was then placed under arrest for Driving Under the Influence. Within two hours of driving, Wampler submitted to an intoxilyzer breath test. The test results showed Wampler's alcohol concentration was 0.159. When the officer completed his certified written report to the director (" Report and Notice" ), he wrote " 0.159" in the " Test Results" blank.
[¶ 3] Wampler made a timely request for an administrative hearing with the Department. At that hearing, Wampler raised three arguments, one of which was that the Department lacked the authority to revoke her driving privileges because the law enforcement officer failed to write " by weight" next to the notation " 0.159" in the " Test Results" blank of his Report and Notice. The administrative hearing officer rejected Wampler's argument, holding " the failure to write ‘ by weight’ is not jurisdictional." The administrative hearing officer suspended Wampler's driving privileges for 91 days, and Wampler appealed to the district court, raising all three issues.
[¶ 4] The district court determined that N.D.C.C. § 39-20-03.1(4) required the law enforcement officer to complete a certified written report which indicated that test results showed Wampler had a blood alcohol concentration of .08 or greater by weight, that this was a basic and mandatory provision of the statute under prevailing case law, and that, while the law enforcement officer's Report and Notice included the notation " 0.159" in the " Test Results" blank, the omission of the phrase " by weight" stripped the Department of authority to suspend Wampler's driving privileges. The district court determined this was the dispositive issue on appeal and did not address Wampler's other arguments. The district court reversed the decision of the administrative hearing officer and ordered that Wampler's driving privileges be restored.
[¶ 5] The Department appeals the district court judgment reversing the administrative hearing officer's decision suspending Wampler's driving privileges. Wampler does not respond to the appeal.
[¶ 6] On appeal from the district court judgment, the Department argues it had authority to suspend Wampler's driving privileges despite omission of the phrase " by weight" on the Report and Notice. In an appeal of a district court's review of an administrative agency's decision, this Court reviews the administrative agency's decision. Steinmeyer v. Dep't of Transp., 2009 ND 126, ¶ 8, 768 N.W.2d 491.
This Court's review of an administrative decision to suspend a driver's license is governed by the Administrative Agencies Practice Act. The review is ...