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Ell v. Director, Department of Transportation

Supreme Court of North Dakota

August 17, 2016

Tyler Dale Ell, Petitioner and Appellant
v.
Director, Department of Transportation, Respondent and Appellee

         Appeal from the District Court of McLean County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.

          Thomas M. Tuntland, for petitioner and appellant.

          Michael T. Pitcher, Assistant Attorney General, Office of the Attorney General, for respondent and appellee.

          OPINION

          Kapsner, Justice.

         [¶ 1] Tyler Ell appeals from a district court judgment affirming a Department of Transportation decision suspending his driving privileges for 91 days. Ell argues the Department erred in suspending his license because there was no evidence establishing officers had reasonable suspicion to stop his vehicle, his continued seizure after the purpose of the initial traffic stop was complete violated his constitutional rights, and the Intoxilyzer breath test was not fairly administered. We reverse, concluding the hearing officer erred in admitting the Intoxilyzer results.

         I

         [¶ 2] On September 5, 2015, Ell's vehicle was stopped for speeding by a McLean County Sherriff's Deputy, Corporal Cody Meadows. Meadows noted an odor of alcohol and Ell admitted he had been drinking alcohol. Meadows contacted Deputy William Janisch for assistance with the stop. Janisch arrived at the scene of the stop and Meadows requested he speak with the driver and conduct the field sobriety tests. Janisch took over the investigation and conducted field sobriety tests and an onsite screening test. The onsite screening test showed Ell had an alcohol concentration of 0.144 percent. Janisch arrested Ell for driving under the influence of intoxicating liquor and requested Ell submit to a breath test. Ell consented to take the test, and a breath test was administered using the Intoxilyzer 8000. The test result showed Ell had an alcohol concentration of 0.158 percent by weight. Ell was issued a report and notice, informing him of the Department's intent to suspend his driving privileges. Ell requested an administrative hearing.

         [¶ 3] At the October 2015 hearing, a number of exhibits were offered and admitted into evidence, including the result of the breath test and a document outlining the approved method to conduct breath tests with the Intoxilyzer 8000. Janisch testified that he administered the breath test according to the approved method.

         [¶ 4] The hearing officer ordered Ell's driving privileges be suspended for 91 days. The hearing officer found Janisch was trained and certified to administer the Intoxilyzer 8000, the test was administered fairly and in accordance with the approved method, and the test result showed Ell had an alcohol concentration of 0.158 percent. Ell appealed the hearing officer's decision, and the district court affirmed.

         II

         [¶ 5] On appeal from a district court's decision reviewing the decision of an administrative agency, we review the agency's order in the same manner as the district court. N.D.C.C. § 28-32-49. We must affirm the agency'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 proceedings ...

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