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Marman v. Levi

Supreme Court of North Dakota

June 7, 2017

Matthew Marman, Appellant
v.
Grant Levi, Director of the North Dakota Department of Transportation, Appellee

         Appeal from the District Court of Billings County, Southwest Judicial District, the Honorable Rhonda R. Ehlis, Judge.

          Thomas F. Murtha IV, Dickinson, ND, for appellant.

          Douglas B. Anderson, Office of the Attorney General, Bismarck, ND, for appellee.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Matthew Marman appealed the district court's judgment affirming the Department of Transportation's suspension of his driving privileges for 180 days. Because Marman failed to rebut the prima facie evidence of the Report and Notice, we affirm.

         I.

         [¶ 2] Matthew Marman was the driver in a single vehicle crash in the early morning hours of September 17, 2015. Officer Cody Nuenthel of the North Dakota State Patrol responded to the scene of the accident to assist. When he arrived at the scene, Officer Nuenthel was advised by Deputy Thomas that he had arrested Marman for failing to perform an onsite screening test. Officer Nuenthel took custody of Marman and transported him to the local law enforcement center. At the center, Marman again refused to submit to a chemical test. Officer Nuenthel did not inform Marman of his ability to remedy his refusal of the onsite screening test by successfully completing the chemical test. Because Marman refused the onsite screening test, the Department suspended his driving privileges for 180 days.

         [¶ 3] At the administrative hearing, Officer Nuenthel testified; Deputy Thomas did not testify. Officer Nuenthel testified to what he observed at the scene and also Deputy Thomas's observations which he relayed to Officer Nuenthel. Marman objected to the testimony, arguing it was hearsay. The hearing officer overruled the challenge and allowed the testimony. Following the hearing, the hearing officer concluded Officer Nuenthel had reason to believe Marman had driven while he was under the influence of alcohol and he refused the onsite screening test.

         [¶ 4] Marman petitioned the hearing officer for reconsideration. The hearing officer upheld the suspension of Marman's driving privileges. Marman appealed to the district court, which affirmed Marman's suspension.

         [¶ 5] On appeal, Marman argues four points: (1) law enforcement must advise individuals of their right to cure a test refusal in order for their license to be revoked; (2) the hearing officer erred in admitting hearsay testimony; (3) Officer Nuenthel did not have reasonable suspicion that Marman was under the influence of alcohol; and (4) North Dakota's implied consent and refusal statutes are unconstitutional because they allow unreasonable searches and seizures, deny substantive due process, and penalize the exercise of a constitutional right.

         II.

         [¶ 6] North Dakota Century Code ch. 28-32, the Administrative Agencies Practice Act, governs our review of the Department's administrative decision to suspend or revoke a driver's license. Potratz v. N.D. Dep't of Transp., 2014 ND 48, ¶ 7, 843 N.W.2d 305. Under N.D.C.C. § 28-32-46, this Court 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 ...

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