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Ebach v. North Dakota Department of Transportation

Supreme Court of North Dakota

March 13, 2019

Shaun Robert Ebach, Appellant
v.
North Dakota Department of Transportation, Appellee

          Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

          Luke T. Heck (argued) and Drew J. Hushka (on brief), Fargo, ND, for appellant.

          Nici Meyer, Assistant Attorney General, Bismarck, ND, for appellee.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] Shaun Robert Ebach appeals from a district court judgment affirming an administrative hearing officer's decision to suspend Ebach's driving privileges for 180 days for driving under the influence of alcohol. On appeal, Ebach argues the administrative hearing officer erred by admitting invalid chemical breath test records and by making result-oriented findings of fact, and that he is entitled to attorney fees and costs. We conclude the test record was properly admitted, and a reasoning mind reasonably could have concluded the administrative hearing officer's finding that the officer who administered the Intoxilyzer test ascertained a 20-minute waiting period prior to administering the test is supported by the weight of the evidence on the entire record. Therefore, we affirm the district court judgment.

         I

         [¶2] On February 18, 2018, Officer Nickolas Holter arrested Ebach for driving under the influence. Officer Holter transported Ebach to the law enforcement center, and administered a chemical breath test ("Intoxilyzer") which indicated Ebach's alcohol content was over the legal limit. On the Intoxilyzer Test Record and Checklist, Officer Holter certified that the 20-minute waiting period was ascertained and that he followed the approved method and instructions displayed by the Intoxilyzer in conducting the test. The Intoxilyzer Test Record and Checklist stated the test result was obtained at 2:20 a.m. Officer Holter also completed a Report and Notice form which stated Ebach was observed driving at 2:03 a.m., was arrested at 2:12 a.m., and provided a breath specimen for the Intoxilyzer test at 2:20 a.m.

         [¶3] Ebach requested and received an administrative hearing before the North Dakota Department of Transportation ("the Department"). Several items were entered into evidence without objection at the hearing, including: the list of certified chemical test operators, the list of approved chemical testing devices, the Intoxilyzer 8000 installation and repair checkout, the approved method to conduct breath test with the Intoxilyzer 8000, and the Ethanol breath standard analytical report. Officer Holter testified that he filled out the Report and Notice form and certified a copy of the Intoxilyzer Test Record and Checklist and that he followed the approved method in administering the Intoxilyzer test. Following Officer Holter's testimony, the hearing officer offered Exhibit 1b, the Report and Notice form, and Exhibit 1c, the Intoxilyzer Test Record and Checklist for admission into evidence. Ebach objected, arguing the Report and Notice form failed "to establish adequate approved method was conducted as it pertains to the times on its face," and that the Intoxilyzer Test Record and Checklist failed to show "scrupulous compliance with the approved method" for chemical testing. The hearing officer overruled the objections and admitted both.

         [¶4] After the exhibits were admitted, Officer Holter testified that the Intoxilyzer machine was running six minutes behind his watch at the time of the test, and tha t the Intoxilyzer test result was actually obtained at 2:26 a.m., not 2:20 a.m. Officer Holter testified that he relied on his watch to ascertain the 20-minute waiting period.

         [¶5] Following the administrative hearing, the Department issued its decision, suspending Ebach's driving privileges for 180 days. The Department found:

Holter used his watch to ascertain the 20 minute waiting period, before administering the test on an approved and installed Intoxilyzer 8000 according to the approved method. Though the Intoxilyzer test record shows the device started with the diagnostic at 02:19, the time on the device was behind that on Holter's watch. According to the test record, Subject Test 1 was obtained at 02:20 and Subject Test 2 was obtained at 02:26. The "Reported AC" of 0.208 was obtained at 02:20 (2:20 a.m.) from the lower of the two subject tests. Contrary to the time on the test record, the test sample was actually obtained about 23 minutes after Holter stopped and contacted Ebach. There is no evidence Ebach had anything in his mouth during his time with Holter. The prima facie showing of the test record that the 20 minute waiting period had been ascertained has not been rebutted. The test was fairly administered.

         [¶6] Ebach appealed the Department's decision to the district court. The court affirmed the Department's decision.

         [¶7] On appeal, Ebach argues the hearing officer erred by admitting the Intoxilyzer Test Record and Checklist into evidence without adequate foundation, and making result-oriented findings of fact. Ebach also argues he is entitled to attorney fees and costs.

         II

         [¶8] Our well-established standard of review for driving privilege suspensions is set forth below:

We review a decision to suspend a person's driving privileges under N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act. The review is limited to the record before the administrative agency. We will not, however, make independent findings or substitute our judgment. We will only determine whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. An administrative agency's decision must be affirmed 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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