from the District Court of McLean County, South Central
Judicial District, the Honorable John W. Grinsteiner, Judge.
M. Tuntland, for petitioner and appellant.
Michael T. Pitcher, Assistant Attorney General, Office of the
Attorney General, for respondent and appellee.
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.
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
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
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of
3. The provisions of this chapter have not been complied with
in the proceedings ...