from the District Court of Billings County, Southwest
Judicial District, the Honorable Rhonda R. Ehlis, Judge.
F. Murtha IV, Dickinson, ND, for appellant.
Douglas B. Anderson, Office of the Attorney General,
Bismarck, ND, for appellee.
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,
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
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