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Filkowski v. Director, North Dakota Department of Transportation

Supreme Court of North Dakota

April 28, 2015

Michael Dale Filkowski, Appellant
v.
Director, North Dakota Department of Transportation, Appellee

Page 786

[Copyrighted Material Omitted]

Page 787

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin A. Schmidt, Judge.

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

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

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

OPINION

Page 788

Daniel J. Crothers, Justice.

[¶1] Michael Filkowski appeals from a district court judgment affirming the Department of Transportation hearing officer's decision suspending his driving privileges for 91 days. We affirm, concluding the Department had authority to suspend Filkowski's driving privileges and the hearing officer did not err in admitting the analytical report containing the results of Filkowski's blood test.

I

[¶2] On October 5, 2013, McKenzie County Deputy Sheriff Travis Bateman stopped Filkowski's vehicle after he observed the vehicle weave, leave the roadway on a curve and cross over the center line and into the lane for oncoming traffic. When Bateman approached the vehicle, he observed an odor of alcohol, noted Filkowski had bloodshot watery eyes and slurred speech. Highway Patrol Trooper Chelsey Schatz arrived at the scene of the stop and took over the investigation. Schatz noticed an odor of alcohol and Filkowski's speech was mumbled and slurred. Filkowski had difficultly exiting his vehicle, and Schatz noted his walking was erratic. Filkowski failed the field sobriety tests. Schatz read him the implied consent advisory, and Filkowski agreed to take an onsite screening test. The test was administered and indicated a 0.151 alcohol concentration. Filkowski was arrested for driving under the influence of alcohol and was informed of the implied consent advisory. He agreed to take a chemical blood test. A blood sample was collected and submitted to the state crime laboratory. The test results showed an alcohol concentration of 0.166 g/100ml.

[¶3] Filkowski requested an administrative hearing, arguing the Department did not have jurisdiction to suspend his license because a portion of Form 104, the blood collection and submission form, was not forwarded to the Department's director. Filkowski also objected to the admission of the analytical report of the blood test because it used the word " ethanol," which did not comply with the statute defining alcohol concentration. He also claims the Department failed to show the approved method for conducting blood analysis was used and no evidence showed who performed the blood-alcohol analysis.

[¶4] The hearing officer admitted the analytical report and foundational documents and suspended Filkowski's license for 91 days. The hearing officer found the blood sample was submitted to the state crime laboratory according to approved procedure, the blood sample was analyzed bye a qualified analyst on an approved device and according to the approved method, the test was fairly administered and the test results showed an alcohol concentration of 0.166 g/100ml, which exceeded the legal limit. Filkowski appealed and

Page 789

the district court affirmed the hearing officer's decision.

II

[¶5] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of a hearing officer's decision suspending a driver's license. Barros v. N.D. Dep't of Transp., 2008 ND 132, ¶ 7, 751 N.W.2d 261. We must affirm the agency's order 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 proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to ...

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