832 N.W.2d 319 (N.D. 2013), 20120316, Painte v. Director, Dep't of Transp.

Docket Nº:20120316.
Citation:832 N.W.2d 319, 2013 ND 95
Opinion Judge:CROTHERS, Justice.
Party Name:Debbie Ann PAINTE, Appellee v. DIRECTOR, DEP'T OF TRANSPORTATION, Appellant.
Attorney:Thomas M. Tuntland, Mandan, ND, for appellee. Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellant.
Judge Panel:MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur. VANDE WALLE, Chief Justice, concurring and dissenting. GERALD W. VANDE WALLE, C.J.
Case Date:June 19, 2013
Court:Supreme Court of North Dakota
 
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Page 319

832 N.W.2d 319 (N.D. 2013)

2013 ND 95

Debbie Ann PAINTE, Appellee

v.

DIRECTOR, DEP'T OF TRANSPORTATION, Appellant.

No. 20120316.

Supreme Court of North Dakota.

June 19, 2013

Page 320

Thomas M. Tuntland, Mandan, ND, for appellee.

Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellant.

CROTHERS, Justice.

[¶ 1] The North Dakota Department of Transportation appealed from a judgment reversing a hearing officer's decision suspending Debbie Ann Painte's driving privileges for 180 days. We conclude the district court erred in deciding the hearing officer made insufficient findings of fact and conclusions of law to establish the police officer had reasonable grounds to believe Painte was in actual physical control of a vehicle. We also conclude the Department laid a proper foundation for the admission of Painte's chemical test for intoxication. Therefore, we reverse the district court's judgment and reinstate the hearing officer's decision suspending Painte's driving privileges.

I

[¶ 2] In March 2012, a Mandan police officer arrested Painte for the offense of being in actual physical control of a vehicle while under the influence of intoxicating liquor. At approximately 2:49 a.m., on March 8, 2012, the officer responded to a property owner's report that a vehicle was parked in her parking area for quite a while and that the vehicle was running with somebody inside of it. After arriving at the location, the officer observed a parked vehicle with the engine running and a female inside.

[¶ 3] The police officer testified at the administrative hearing that the occupant, later identified as Painte, was not conscious and was slumped over in the seat with her eyes closed. The officer knocked on the window to get Painte's attention. The officer observed a pool of vomit on the ground outside the vehicle and Painte was bleeding on her nose. The officer also detected the odor of alcohol. The officer testified Painte was very difficult to understand, was having a hard time following instructions and had very red and bloodshot eyes.

[¶ 4] The officer testified Painte appeared to be intoxicated and got out of the vehicle to perform field sobriety tests. Painte failed the horizontal gaze nystagmus test and was unable to complete the walk and turn test and the S-D5 on-site screening test. The officer arrested

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Painte for being in actual physical control of a vehicle and transported her to Morton County jail for a blood draw. The results of the blood test established Painte had a blood alcohol concentration of .217 percent by weight.

[¶ 5] Painte requested an administrative hearing. After the hearing, the hearing officer issued findings of fact, conclusions of law and a decision suspending Painte's driving privileges for 180 days. Painte appealed to the district court, arguing the hearing officer erred in concluding the chemical test was fairly administered and in concluding probable cause existed to arrest her for actual physical control of a motor vehicle. The district court reversed the hearing officer's decision and reinstated Painte's driving privileges.

II

[¶ 6] Our review of an administrative agency decision to suspend a person's driving privileges is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Berger v. North Dakota Dep't of Transp., 2011 ND 55, ¶ 5, 795 N.W.2d 707. On appeal from the district court, we review the agency's decision. Berger, at ¶ 5; Masset v. Dir., North Dakota Dep't of Transp., 2010 ND 211, ¶ 6, 790 N.W.2d 481. " Courts exercise limited review in appeals from administrative agency decisions, and the agency's decision is accorded great deference." Berger, at ¶ 5. We review an administrative agency decision under N.D.C.C. § 28-32-49 in the same manner as the district court under N.D.C.C. § 28-32-46. Berger, at ¶ 5. We 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 the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge."

N.D.C.C. § 28-32-46.

[¶ 7] " In deciding whether an agency's findings of fact are supported by a preponderance of the evidence, our review is confined to the record before the agency and to determining ‘ whether a reasoning mind reasonably could have determined the factual conclusions were proven by the weight of the evidence.’ " Hawes v. N.D. Dep't of Transp., 2007 ND 177, ¶ 14, 741 N.W.2d 202 (quoting Kraft v. N.D. State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572). " We defer to the agency's ruling by not making independent findings of fact or by substituting our own judgment for the agency's, but ‘ the ultimate conclusion of whether the facts meet the legal standard, rising to the level of probable cause, is a question of law, fully reviewable on appeal.’ " Hawes, at ¶ 14 (quoting Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161).

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III

[¶ 8] The Department argues the hearing officer's findings of fact support the conclusion of law that the police officer had reasonable grounds to believe Painte was in actual physical control of the vehicle in violation of N.D.C.C. § 39-08-01.

[¶ 9] Under N.D.C.C. § 39-08-01(1)(a), a person is prohibited from being " in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if ... [t]hat person has an alcohol concentration...

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