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Potratz v. North Dakota Dept. of Transp.

Supreme Court of North Dakota

March 11, 2014

Joseph Daniel POTRATZ, Appellant
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

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[Copyrighted Material Omitted]

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Michael R. Hoffman, Bismarck, N.D., for appellant.

Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellee.

McEVERS, Justice.

[¶ 1] Joseph Daniel Potratz appeals the district court's judgment affirming the administrative hearing officer's decision suspending his driving privileges. We affirm the district court judgment.

I

[¶ 2] On February 17, 2013, Burleigh County Deputy Sheriff Danny Lemieux arrested Potratz for driving under the influence (" DUI" ) and, subsequently, issued a certified written report, the Report and Notice form, to suspend Potratz's driving privileges. Potratz requested and received an administrative hearing, which occurred on March 15, 2013.

[¶ 3] At the administrative hearing, the deputy testified to the following events. At approximately 1:17 a.m., on February 17, 2013, while patrolling northbound on Highway 83, the deputy followed a black Dodge Ram pickup truck after observing it straddling the left fog line. The deputy later stopped the vehicle on a two lane road after observing it cross into the opposing traffic lane. The deputy observed the driver, later identified as Potratz, had bloodshot, glossy, watery eyes; an odor of an alcoholic beverage on his breath; and admitted drinking. The deputy conducted field tests on Potratz. Potratz passed the one leg stand test but did not pass the horizontal gaze nystagmus test, or the walk and turn test. The Alco-Sensor FST on-site screening test indicated a " 0.101 percent breath alcohol content." The deputy testified that he arrested Potratz for DUI and Potratz consented to an Intoxilyzer test, which revealed an alcohol concentration of .094 at 2:00 a.m.

[¶ 4] At the administrative hearing, the Report and Notice form, the Intoxilyzer Test Record and Checklist, and the Drivers License Division Central Record for Potratz were received into evidence. The

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Report and Notice form provided the date at the top of the form noting the date of the occurrence, and again in the middle of the form certifying the issuance of a temporary license, but the date was not listed in the test results portion noting only the time the sample was obtained. The Report and Notice form listed the time of driving as 1:17 a.m., the time of arrest as 1:27 a.m., and the time of the test as 2:00 a.m. The Report and Notice form indicated the specimen was provided by " breath" and listed the test results as " .094% BRAC." The Intoxilyzer Test Record and Checklist listed the reported AC as " 0.094" at 2:00 a.m. The Intoxilyzer Test Record and Checklist listed Potratz's weight as 180 pounds. The Drivers License Division Central Record listed Potratz's weight as 170 pounds.

[¶ 5] The administrative hearing officer concluded the deputy had reasonable grounds to believe Potratz had been driving under the influence and Potratz was properly tested after his arrest to determine his alcohol concentration within two hours of driving. On March 20, 2013, Potratz appealed the hearing officer's decision. The district court affirmed the hearing officer's decision. On October 16, 2013, Potratz appealed.

II

[¶ 6] On appeal, Potratz argues (1) the director lacked authority to suspend his driving privileges because the Report and Notice form failed to state the date the breath specimen was obtained and, therefore, violated N.D.C.C. ch. 39-20; (2) the director lacked authority to suspend Potratz's driving privileges because the Report and Notice form failed to state a test result of an alcohol concentration of at least eight one-hundredths of one percent by weight and, therefore, violated N.D.C.C. ch. 39-20; and (3) a preponderance of the evidence does not support that the Intoxilyzer machine was working properly because of the differing weights listed for Potratz in the Intoxilyzer Test Record and Checklist and the Drivers License Division Central Record.

[¶ 7] The Administrative Agency Practice Act governs this Court's review of an administrative decision to suspend a driver's license. N.D.C.C. ch. 28-32; Pesanti v. N.D. Dep't of Transp., 2013 ND 210, ¶ 7, 839 N.W.2d 851. This Court reviews the administrative agency's decision when a district court's review of an administrative agency's decision is appealed. Steinmeyer v. N.D. Dep't of Transp., 2009 ND 126, ¶ 8, 768 N.W.2d 491.

The review is limited to the record before the administrative agency. We review the administrative hearing officer's decision and give deference to the administrative hearing officer's findings. We do not, however, make independent findings or substitute our judgment for that of the agency. Rather, we determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence ...

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