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Gillmore v. Levi

Supreme Court of North Dakota

April 12, 2016

Andrew John Gillmore, Petitioner and Appellant
v.
Grant Levi, Director of the North Dakota Department of Transportation, Respondent and Appellee

Page 802

          Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

         Thomas F. Murtha IV, Dickinson, N.D., for petitioner and appellant.

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

         Dale V. 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.

          OPINION

Page 803

          Dale 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.

         I

          [¶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 presumptive limit.

          [¶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.

         II

          [¶5] Gillmore raises numerous arguments challenging the Department's suspension of his driving privileges.

Page 804

          [¶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 the appellant.
. . . .
5. The findings of fact made by the agency are not supported by a ...

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