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Leno v. Director, North Dakota Department of Transportation

Supreme Court of North Dakota

October 19, 2015

James Kelly Leno, Plaintiff and Appellant
v.
Director, North Dakota Department of Transportation, Defendant and Appellee

Page 456

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

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

Michael T. Pitcher, Office of the Attorney General, Bismarck, N.D., for defendant and appellee.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Thomas E. Merrick, D.J., Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. The Honorable Thomas E. Merrick, D.J., sitting in place of Sandstrom, J., disqualified.

OPINION

Page 457

Carol Ronning Kapsner, Justice.

[¶1] James Kelly Leno appeals from a judgment affirming a decision of the Department of Transportation to suspend his driving privileges for 91 days. Because we conclude the arresting officer's testimony sufficiently established he performed the required steps listed on the specimen submitter's checklist and Leno received a fair and impartial hearing, we affirm the judgment.

I

[¶2] On July 31, 2014, Leno was arrested in Burleigh County for driving under the influence of alcohol after failing field sobriety tests and an onsite alcohol screening test. A blood test revealed Leno had a blood alcohol concentration of 0.145 percent. Leno requested an administrative hearing to contest the Department's intention to suspend his driving privileges.

[¶3] At the hearing, the arresting officer testified but did not bring with him the bottom portion of Form 104, the specimen submitter's checklist he completed, which contains directions and a checklist to ensure proper collection and submission of blood samples. The hearing officer admitted into evidence a blank copy of the specimen submitter's checklist, allowed the officer to review it to refresh his memory, and then questioned him about the procedure he used to collect and submit the blood sample for analysis. The hearing officer found the officer followed the required procedures, concluded Leno was tested in accordance with the law, and suspended his driving privileges for 91 days. The district court affirmed the Department's decision.

II

[¶4] Leno argues he did not receive a fair and impartial hearing because the hearing officer used a blank copy of the specimen submitter checklist " to lead the arresting officer to give testimony to show compliance" with the required procedures.

[¶5] In Kroschel v. Levi, 2015 ND 185, ¶ 6, 866 N.W.2d 109, we said:

" We review an administrative revocation of a driver's license under N.D.C.C. § 28-32-46." Vanlishout v. N.D. Dep't of Transp., 2011 ND 138, ¶ 12, 799 N.W.2d 397. We must affirm the Department'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.

Page 458

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 the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge."
Johnson v. Dep't of Transp., 2004 ND 148 683 N.W.2d 886 Deeth v. Dir., N.D. Dep't of Transp., 2014 ND 232 857 N.W.2d 86 Obrigewitch v. Dir., N.D. Dep't of Transp., 2002 ND 177 653 N.W.2d 73 Deeth
Vanlishout 2011 ND 138 799 N.W.2d 397

[¶6] During the administrative hearing, exhibit 1d, the completed top portion of Form 104, was admitted in evidence. Exhibit 7, a blank copy of the entire Form 104, was also admitted in evidence without objection. The bottom of Form ...


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