from the District Court of Ramsey County, Northeast Judicial
District, the Honorable Donovan J. Foughty, Judge.
R. Vetsch, Devils Lake, ND, for appellant.
Michael T. Pitcher, Office of Attorney General, Bismarck, ND,
VANDEWALLE, CHIEF JUSTICE.
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.
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.
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.
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
3.The provisions of this chapter have not been complied with
in the proceedings ...