Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.
Justin J. Vinje, Bismarck, ND, for appellant.
Michael T. Pitcher, Office of Attorney General, Bismarck, ND, for appellee.
Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Gerald W. VandeWalle, C.J., Gary H. Lee, D.J. Opinion of the Court by Kapsner, Justice. The Honorable Gary H. Lee, D.J., sitting in place of Sandstrom, J., disqualified. Lee, District Judge, concurring in the result.
[¶1] Richard Keller appeals a district court judgment affirming a North Dakota Department of Transportation hearing officer's decision suspending his driving privileges. Because we conclude the approved method for administering an Intoxilyzer test was not followed and no expert testimony was offered on the effect, if any, of the deviation, we reverse and remand.
[¶2] According to the administrative hearing testimony, a Bismarck police officer stopped Keller for driving over a lane-dividing line. The officer noted Keller had glossy, bloodshot eyes, slurred speech, and appeared confused. The officer also detected the odor of alcohol, and Keller admitted he had been drinking. After failing to complete a field sobriety test, Keller submitted to and failed an onsite breath test and was arrested. The officer transported Keller to the police department for chemical testing, and Keller blew into the Intoxilyzer machine providing only one adequate breath sample for the machine to read and would not or could not provide a second breath sample. The officer prematurely terminated the test sequence before the machine timed itself out.
[¶3] At the administrative hearing, Keller objected to the admission of the test record, arguing compliance with the approved method had not been demonstrated. The hearing officer overruled the objection and concluded the arresting officer had reasonable grounds to believe Keller had been driving under the influence, and Keller was properly tested after his arrest
to determine his alcohol concentration. The hearing officer suspended Keller's driving privileges for one year. Keller appealed to the district court which affirmed the hearing officer's decision.
[¶4] On appeal, Keller argues the Department failed to show scrupulous compliance with the approved method for administering the Intoxilyzer test, warranting exclusion of his test record.
[¶5] On an appeal of a district court's review of an administrative agency's decision, this Court reviews the agency's decision, giving deference to the hearing officer's findings. Potratz v. N.D. Dep't of Transp., 2014 ND 48, ¶ 7, 843 N.W.2d 305. This Court does not make independent findings or substitute its own judgment for that of the agency. Pesanti v. N.D. Dep't of Transp., 2013 ND 210, ¶ 7, 839 N.W.2d 851. Rather, this Court only determines " whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record." Id. (citation omitted). This Court reviews questions of law under the de novo standard of review and gives deference to the Department's findings of fact. Potratz, at ¶ 7. When reviewing an administrative hearing officer's evidentiary rulings, this Court employs the abuse of discretion standard. Id. This Court 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 of the appellant.
3. The provisions of this chapter have not been complied with in the ...