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Frank v. Dir., North Dakota DOT

Supreme Court of North Dakota

July 17, 2014

Adam Paul Frank, Appellant
v.
Director, North Dakota Department of Transportation, Appellee

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

Michael R. Hoffman, Bismarck, ND, for appellant.

Michael T. Pitcher, Office of Attorney General, Bismarck, ND, for appellee.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, William A. Neumann, S.J., Gerald W. VandeWalle, C.J. The Honorable William A. Neumann, S.J., sitting in place of Sandstrom, J., disqualified.

OPINION

Kapsner, Justice.

Page 249

[¶1] Adam Paul Frank appeals from a district court judgment affirming a Department of Transportation hearing officer's decision suspending Frank's driving privileges for driving under the influence of alcohol. We conclude proper foundation for the Intoxilyzer test results was not laid, and the administrative hearing officer erred in admitting the Intoxilyzer test results.

Page 250

We reverse the district court judgment.

I

[¶2] On July 12, 2013, a Burleigh County deputy clocked a vehicle traveling 46 miles-per-hour in a 35 mile-per-hour zone and stopped the vehicle for speeding. The deputy noted the driver, Frank, had an odor of alcoholic beverages on his breath and had bloodshot, glossy eyes. The deputy requested Frank perform field sobriety tests. Frank failed or had unsatisfactory results on the horizontal gaze nystagmus test, the walk-and-turn test, the one-leg stand test, and the Alco-Sensor FST on-site screening test. Frank was arrested for DUI and consented to breath testing. Intoxilyzer testing was done, and the results indicated Frank had an alcohol concentration of .12% within two hours of driving.

[¶3] Frank requested an administrative hearing. At the hearing, Frank objected to the admission of the Intoxilyzer test results, arguing it had not been shown that the methods, devices, or the individual who had administered the test had been approved bye the director of the state crime laboratory or the director's designee. The hearing officer overruled Frank's objection. After the hearing, the hearing officer suspended Frank's driving privileges for 91 days, and Frank appealed. On appeal, the district court affirmed the hearing officer's decision. Frank appeals the district court judgment.

II

[¶4] 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 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 from the entire record.

Pesanti v. N.D. Dep't of Transp., 2013 ND 210, ¶ 7, 839 N.W.2d 851 (citations and internal quotation marks omitted). " This Court reviews questions of law de novo and gives deference to the Department's sound findings of fact." Steinmeyer, at ¶ 8 (citations omitted). We must affirm an administrative hearing officer's decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights ...

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