from the District Court of Stark County, Southwest Judicial
District, the Honorable William A. Herauf, Judge.
F. Murtha IV, Dickinson, N.D., for petitioner and appellant.
T. Pitcher, Office of the Attorney General, Bismarck, N.D.,
for respondent and appellee.
Sandstrom, Daniel J. Crothers, Carol Ronning Kapsner, Gerald
W. VandeWalle, C.J. I concur in the result. Lisa Fair
McEvers. Opinion of the Court by Sandstrom, Justice.
V. Sandstrom, Justice.
[¶1] Andrew Gillmore appeals from a judgment
affirming the Department of Transportation's decision to
suspend his driving privileges for 91 days. Because we
conclude the Department's decision is in accordance with
the law, its findings of fact are supported by a
preponderance of the evidence and support the conclusions of
law, and Gillmore's constitutional rights were not
violated, we affirm the judgment.
[¶2] On February 14, 2015, Gillmore was
stopped by a Dickinson police officer after the officer
observed him failing to use a turn signal and "
fishtail[ing]" around a corner. The officer noticed
Gillmore's eyes were watery and detected a strong odor of
cigars coming from Gillmore's vehicle, and he asked
Gillmore to sit in the patrol vehicle. While in the patrol
vehicle, the officer smelled the odor of alcohol, and
Gillmore admitted drinking alcohol. After failing some field
sobriety tests, Gillmore was read the implied consent
advisory and agreed to take an alcohol screening test.
Gillmore attempted to blow into the machine five times but
was unable to register a result. The officer placed Gillmore
under arrest for refusal to submit to the onsite screening
test and for driving under the influence of alcohol and drove
him to the law enforcement center. Gillmore agreed to submit
to a chemical test at the law enforcement center, and while
administering the test, the officer told him " to blow
as hard as he can." The test showed an alcohol
concentration of .082 percent by weight, above the
[¶3] Gillmore requested an administrative
hearing to contest the Department's intention to suspend
his driving privileges for having a blood alcohol content
above the presumptive limit of .08 percent under N.D.C.C.
§ 39-08-01(1)(a). Following a hearing during which the
arresting officer and Gillmore testified, the
Department's hearing officer suspended Gillmore's
driving privileges for 91 days. The Department denied
Gillmore's petition for reconsideration. The district
court affirmed the Department's decision.
[¶4] The Department had jurisdiction under
N.D.C.C. § 39-20-05. Gillmore's appeal to the
district court was timely under N.D.C.C. § 28-32-42(1).
The district court had jurisdiction under N.D. Const. art.
VI, § 8, and N.D.C.C. § 39-20-06. Gillmore's
appeal to this Court was timely under N.D.C.C. §
28-32-49. This Court has jurisdiction under N.D. Const. art.
VI, § § 2 and 6, and N.D.C.C. § 28-32-49.
[¶5] Gillmore raises numerous arguments
challenging the Department's suspension of his driving
[¶6] We review an administrative suspension
of driving privileges under N.D.C.C. § 28-32-46, which
for purposes of this appeal requires that we affirm the
Department's decision unless:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of
. . . .
5. The findings of fact made by the agency are not supported
by a ...