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Lies v. North Dakota Department of Transportation

Supreme Court of North Dakota

March 15, 2019

Morgan Lies, 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.

          Joseph R. Vetsch, Devils Lake, ND, for appellant.

          Michael T. Pitcher, Office of Attorney General, Bismarck, ND, for appellee.

          OPINION

          VANDEWALLE, CHIEF JUSTICE.

         [¶1] Morgan Lies appealed from a district court judgment affirming a Department of Transportation decision suspending his driving privileges for ninety-one days. Lies argues the hearing officer's decision violated his constitutional rights because neither the arresting officer nor the officer who received the tip had a reasonable and articulable suspicion Lies was violating the law prior to being stopped. We conclude the record does not support the administrative officer's conclusion that the vehicle was properly identified prior to being stopped. We reverse.

         I

         [¶2] An off-duty officer, Laite, saw a vehicle driving erratically from Ed's Bait Shop on Highway 20 in Devils Lake and reported it to the Highway Patrol. On-duty officer Mlynar handled the tip, which identified the vehicle only as a "white HHR." Laite did not report a license plate number, description of the driver, or provide ongoing location information. Within half an hour, Mlynar began watching a white HHR and told another officer, Rodriquez, about the tip while surveilling the vehicle in a McDonald's drive-thru. Shortly after, Mlynar lost track of the vehicle on Highway 2. Approximately fifty-five minutes after Laite's tip, Rodriquez encountered a white HHR on Highway 2. Mlynar instructed Rodriquez to stop the vehicle. Lies was the driver of the white HHR Rodriquez stopped. After failing field sobriety tests and an initial screening test, Lies was arrested for driving under the influence. Lies' Intoxilyzer breath test result was 0.12 percent.

         [¶3] At the administrative hearing, the hearing officer determined the central issue was whether Mlynar had a reasonable and articulable basis to direct Rodriquez to stop Lies' vehicle. Rodriquez testified she did not observe any traffic violations or erratic driving and her sole reason for stopping Lies' vehicle was the off-duty officer's earlier report. The hearing officer determined there was no evidence Mlynar could corroborate erratic driving through his own observation or that he directly observed any illegal activity. However, because Laite was a reliable source of information, Mlynar located a white HHR in the general vicinity of the tip within half an hour, and there was "no evidence the sighting of white HHRs is a common occurrence," the hearing officer determined Mlynar had reasonable suspicion to stop Lies' vehicle. Lies' driving privileges were suspended for ninety-one days. Lies appealed the hearing officer's decision to the district court, which affirmed the suspension.

         II

         [¶4] Lies argues the tip that a white HHR was driving erratically, without additional identifying information, did not provide reasonable suspicion to stop his vehicle. "The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of an administrative decision suspending or revoking a driver's license." Crawford v. Director, N.D. Dep't of Transp., 2017 ND 103, ¶ 3, 893 N.W.2d 770. Under N.D.C.C. § 28-32-49, we review an appeal from a district court judgment in an administrative appeal in the same manner as provided under N.D.C.C. § 28-32-46, which requires a district court to affirm an agency order unless it finds any of the following:

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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