Aamodt v. North Dakota Dept. of Transp., 20040056.

• Decision Date: 30 June 2004
• Docket Number: No. 20040056.,20040056.
• Citation: 682 N.W.2d 308,2004 ND 134
• Parties: Brian J. AAMODT, Petitioner and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
• Court: North Dakota Supreme Court

682 N.W.2d 308

2004 ND 134

Brian J. AAMODT, Petitioner and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

No. 20040056.

Supreme Court of North Dakota.

June 30, 2004.

Ralph A. Vinje, Vinje Law Firm, Bismarck, N.D., for petitioner and appellee.

Andrew Moraghan, Assistant Attorney General, Office of the Attorney General, Bismarck, N.D., for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from a South Central Judicial District Court judgment reversing an administrative hearing officer's decision to suspend Brian Aamodt's driving privileges for 91 days. The Department argues the district court erred in finding that because the arresting officer failed to list in the report and notice form reasonable grounds to believe Aamodt was in physical control of a moving vehicle, the Department had no authority to suspend Aamodt's driving privileges. The Department also argues probable cause existed to arrest Aamodt for being in actual physical control of a moving vehicle and to believe Aamodt was under the influence of alcohol. We affirm, holding that the provision in N.D.C.C. § 39-20-03.1(3) requiring an officer to issue a certified written report showing reasonable grounds to believe the person was in actual physical control of a motor vehicle while under the influence of alcohol is a basic and mandatory provision.

I

[¶ 2] On October 4, 2003, at approximately 12:44 a.m., Mandan Police Officers Tim Bleth and Kelly Dollinger observed Aamodt and Loren Smith get out of a taxicab and walk toward a white Ford pickup. The officers were in plain clothes in an unmarked vehicle in the parking lot of the Silver Dollar Bar. It appeared to the officers that Aamodt and Smith were intoxicated. The officers observed Aamodt get into the pickup through the driver's door and start the engine. The officers also observed Smith urinating on the ground near the rear of the pickup, and they approached him. Officer Bleth, observing Aamodt exit the vehicle, approached him and asked for identification.

[¶ 3] While talking with Aamodt, the officer observed his slurred speech, bloodshot eyes, and the odor of alcohol. The officer asked Aamodt to submit to field tests and an S-D2 test, but Aamodt declined. The officer ultimately arrested Aamodt for being in actual physical control of a vehicle while under the influence of alcohol. Aamodt submitted to an Intoxilyzer test, and the results showed he had a blood alcohol level of .09 percent. After Aamodt was issued a temporary operator's permit and was notified of the Department's intent to suspend his driving privileges, he requested a hearing. A copy of the report and notice form was timely submitted to the Department.

[¶ 4] At the October 23, 2003, administrative hearing, Officer Bleth testified that when he observed Aamodt and Smith in the Silver Dollar parking lot, they appeared to be intoxicated, "because they walked with a stagger." When asked to describe exactly what he saw that he would describe as "a stagger," he explained that Aamodt and Smith were: "Crossing the feet over. You know, body swaying back and forth." He also testified there was "lighting in the area because the parking lot is lit up." He was asked how far away he was from Aamodt; however, his response was unclear. He stated, "We were maybe about 75 yards." He then explained, "Or no, actually it would be a lot closer, because we walked to them." The officer later testified they were about four times the length of the room away; however, there is nothing in the record to indicate how long the room was.

[¶ 5] The officer testified that after he approached Aamodt, he asked him how much he had had to drink and Aamodt said he had had a couple of beers. Aamodt also testified he had two or three beers that evening and had not eaten. The officer testified he asked Aamodt "if he felt that he was all right to drive," and Aamodt stated he was not going to drive. He testified he asked Aamodt who was going to drive, and Aamodt stated his friend was. He testified that Aamodt said his friend told him just to start the vehicle, and so he did. He testified he asked Aamodt why they did not just take the taxi home, and Aamodt stated again that he was not going to drive.

[¶ 6] The officer testified he told Aamodt he was in actual physical control of the vehicle and Aamodt stated he did not move the vehicle. The officer testified he told him it did not matter. He explained he then asked Smith how he planned on getting home, and Smith stated he had no plans of driving. He testified that Smith was not able to say who was going to drive him. He testified he then asked Aamodt whether he would be willing to perform some field tests, and Aamodt said no. The officer testified that Aamodt said he was not going to drive and felt he did not have to take any tests. The officer testified, he explained to Aamodt that he was in actual physical control of a motor vehicle, and he asked him again if he would take some field tests. He testified that Aamodt asked to talk to an attorney. The officer testified that he told him he was not under arrest and that he asked him whether he would be willing to submit to an S-D2 test. He testified that Aamodt did not submit to the S-D2 test. The officer testified he then told Aamodt he was under arrest for actual physical control of a motor vehicle while under the influence of alcohol.

[¶ 7] Aamodt testified the officer took keys from his pocket after he had been handcuffed and the officer examined them to see whether any would fit the pickup. He testified there were no keys in the pickup's ignition. The officer testified that when Aamodt exited the vehicle, it was shut off. He testified he took keys out of Aamodt's pocket when he arrested him, but those keys were not for the pickup. He testified he found the ignition key lying by the pedal when he searched the vehicle incident to arrest.

[¶ 8] The officer testified that after the arrest, he informed Aamodt of the implied-consent law and asked him whether he would be willing to submit to a chemical test. He testified that Aamodt asked to talk to an attorney first. He testified that Aamodt spoke with an attorney and then stated he would be willing to take any test he wanted. The officer testified that an Intoxilyzer test was then administered.

[¶ 9] At the hearing, Aamodt objected to the hearing, arguing that because the report turned in by the officer did not show reasonable grounds to believe Aamodt was in actual physical control of a motor vehicle while under the influence of alcohol, as required by N.D.C.C. § 39-20-03.1(3), the Department could not justify suspending his driving privileges. He argued the language in the statute is mandatory. The hearing officer overruled the objection, and the hearing continued. Aamodt also argued there was no probable cause to arrest. He argued that although the officer described staggering, it was dark at the time, the officer was far away in another vehicle, and staggering would be inconsistent with a .09 blood-alcohol level. The hearing officer concluded the police officer had a proper basis to approach Aamodt and had reasonable grounds to believe Aamodt was in physical control of a vehicle while under the influence of alcohol. He suspended Aamodt's driving privileges for 91 days.

[¶ 10] Aamodt appealed the hearing officer's decision to the district court. On February 17, 2004, the district court entered a judgment reversing the hearing officer's decision. The district court found the report and notice of the Department's intent to suspend Aamodt's driving privileges that was submitted to the director of the Department did not state, as required by law, reasonable grounds to believe Aamodt was in actual physical control of a motor vehicle while under the influence of alcohol. In its memorandum opinion the district court explained, "All Officer Bleth checked in the box for the `Officer's Statement of Probable Cause' was `already stopped' and `odor of alcoholic beverage.' No explanation was submitted on the Report and Notice form by Officer Bleth." The district court explained that probable cause is a fundamental reason for making an arrest and that failing to "even minimally state the officer's probable cause" deprived the Department of authority to suspend Aamodt's driving privileges.

[¶ 11] Aamodt timely requested a hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. The Department filed, under N.D.C.C. § 28-32-49, a timely notice of appeal from the district court judgment. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 12] Our review of an administrative suspension of a person's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Dettler v. Sprynczynatyk, 2004 ND 54, ¶ 10, 676 N.W.2d 799. "This Court exercises a limited review in appeals involving drivers' license suspensions or revocations." Henderson v. Director, N.D. Department of Transportation, 2002 ND 44, ¶ 6, 640 N.W.2d 714. "On appeal, we review the administrative agency's decision and give deference to the administrative agency's findings." Johnson v. N.D. Department of Transportation, 2004 ND 59, ¶ 8, 676 N.W.2d 807. We will not substitute our judgment for that of the agency or make independent findings. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161. We instead determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. Id.; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979). We defer to the hearing officer's opportunity to...