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Deeth v. Director, North Dakota Department of Transportation

Supreme Court of North Dakota

December 18, 2014

Nathaniel W. Deeth, Petitioner and Appellee
v.
Director, North Dakota Department of Transportation, Respondent and Appellant

Page 87

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

REVERSED.

Lloyd C. Suhr, Bismarck, N.D.

Douglas B. Anderson, Office of Attorney General, Bismarck, N.D.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice.

OPINION

Page 88

Sandstrom, Justice.

[¶1] The Department of Transportation appeals from a district court judgment reversing a hearing officer's decision revoking Nathaniel Deeth's driving privileges for 180 days for refusing the blood test after being arrested for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor. Concluding the district court erred in holding the hearing officer's findings of fact are not supported by a preponderance of the evidence, we reverse the district court's judgment and reinstate the hearing officer's decision revoking Deeth's driving privileges for a period of 180 days.

I

[¶2] After he was found lying in the backseat of a vehicle parked at a rest area outside of Bismarck, Deeth was arrested for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor. Deeth requested an administrative hearing on the revocation of his driving privileges for refusing to submit to testing to determine his alcohol concentration after arrest. Because Deeth was unable to appear at the initial hearing in person, by telephone, or through counsel, the Department granted his request for rehearing.

[¶3] At the hearing, a North Dakota Highway Patrol officer testified that in August 2013, the patrol received a report from the Department of Transportation about a vehicle that had been parked in the parking lot of a rest area on Interstate 94 near Bismarck for approximately three days. The officer testified that upon arriving at the scene, he approached the vehicle, which was not running. He observed Deeth lying awake in the backseat with the vehicle doors open. The officer testified that when he questioned Deeth about his reason for parking at the rest area for an extended period, Deeth claimed his vehicle's battery was dead and he planned to sleep in his vehicle for the evening.

[¶4] The officer testified that while speaking with Deeth, he detected the strong odor of alcohol and noticed numerous open bottles of what appeared to be alcoholic beverages in the vehicle. He testified he also noticed Deeth's speech was slurred and his eyes were bloodshot and glossy. The officer testified that after he asked Deeth for his driver's license and ignition keys, Deeth got out of the backseat of the vehicle and began searching for his license and keys from the driver's side door. The officer testified Deeth was able to locate only his driver's license. The officer testified he asked Deeth to submit to a series of field sobriety tests and Deeth failed the horizontal gaze nystagmus, alphabet, backwards count, and partial alphabet tests. The officer testified Deeth also submitted to the Alco-Sensor FST on-site screening test, which revealed a blood alcohol concentration of .301. Deeth was placed under arrest for actual physical control of a motor vehicle while under the influence of alcohol. After the implied consent advisory, he refused to submit to a blood test.

[¶5] The officer testified that after arresting Deeth, he conducted a brief search of the vehicle for the ignition keys but was unable to locate them because of the number of personal items in the vehicle. He ...


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