Appeal from the District Court of Mercer County, South Central Judicial District, the Honorable Cynthia Feland, Judge.
Danny L. Herbel, The Regency Business Center, Bismarck, ND, for appellant.
Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for appellee.
Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.
[¶1] Jesse Keller appeals a district court judgment affirming a Department of Transportation hearing officer's decision suspending his driving privileges for 180 days for driving under the influence. We affirm concluding the Department did not lose authority to suspend Keller's privileges, when the police officer did not forward the results of the drug analytical report of Keller's blood sample to the Department.
[¶2] On December 6, 2013, a Beulah police officer observed Jesse Keller driving
with an obstructed license plate. Keller turned his vehicle into a parking lot and stopped. The officer parked next to Keller's vehicle and, when Keller exited the vehicle, the officer made contact with him. The officer smelled an odor of alcohol coming from Keller and noticed Keller's speech was slurred. Keller agreed to take field sobriety tests and failed the horizontal gaze nystagmus test. Keller refused further field sobriety testing. Although Keller agreed to take an onsite screening test, he failed to provide an adequate breath sample. The officer arrested Keller for driving under the influence and transported him to the hospital. At the hospital, the officer read Keller the implied consent advisory, and Keller agreed to provide a blood sample. After a blood sample was collected, the officer submitted the blood sample to the state crime laboratory, requesting it be tested for both alcohol and drugs. The alcohol analytical report of Keller's blood sample indicated a 0.210 alcohol concentration. The officer sent the alcohol analytical report to the director of the Department of Transportation, along with other required documents. However, the officer testified he could not remember whether he had received the drug analytical report of the blood sample at the time he submitted the other documents to the director. The officer was not aware if anyone else had forwarded the drug analytical report to the director.
[¶3] Keller requested a hearing, and a hearing was held. At the hearing, Keller requested the opportunity to submit the results of the drug analytical report of his blood sample to the hearing officer after the hearing, as an exhibit, and did so. The results showed the presence of hydrocodone in Keller's blood sample. After the hearing, the hearing officer suspended Keller's driving privileges for 180 days, concluding the officer had reasonable grounds to believe Keller had been driving a vehicle while under the influence of intoxicating liquor, Keller was tested in accordance with the law, and Keller's alcohol concentration was over the legal limit. Keller appealed. The district court affirmed the hearing officer's decision. Keller appealed to this Court.
[¶4] " This Court reviews the Department's decision to suspend a person's driving privileges under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32." McCoy v. N.D. Dep't of Transp., 2014 ND 119, ¶ 6, 848 N.W.2d 659 (citing Painte v. Dir., Dep't of Transp., 2013 ND 95, ¶ 6, 832 N.W.2d 319). " We review the agency's decision on appeal from the district court. However, the district court's analysis is entitled to respect if it is sound." Herrman v. N.D. Dep't of Transp., 2014 ND 129, ¶ 6, 847 N.W.2d 768 (citation omitted) (quotation marks omitted). An agency's decision is accorded great deference, when reviewed on appeal. McCoy, 2014 ND 119, ¶ 6, 848 ...