Boehler v. Backes, 900161

• Decision Date: 02 October 1990
• Docket Number: No. 900161,900161
• Citation: 461 N.W.2d 103
• Parties: Lyle BOEHLER, Petitioner and Appellant, v. Richard BACKES, Director, North Dakota Department of Transportation, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 103

461 N.W.2d 103

Lyle BOEHLER, Petitioner and Appellant, v. Richard BACKES, Director, North Dakota Department of Transportation, Respondent and Appellee.

Civ. No. 900161.

Supreme Court of North Dakota.

Oct. 2, 1990.

Thomas K. Schoppert, of Schoppert Law Firm, Minot, for petitioner and appellant.

Robert E. Lane, Asst. Atty. Gen., Dept. of Transp., Bismarck, for respondent and appellee.

LEVINE, Justice.

Lyle Boehler appeals from a district court judgment affirming an administrative suspension of Boehler's driver's license. We affirm.

Boehler was arrested for driving under the influence of alcohol and taken by the arresting officer to St. Joseph's Hospital in Minot to have a sample drawn for a blood-alcohol test. After the sample was drawn for the sheriff's department, Boehler indicated that he wished to have his own blood-alcohol test administered at Trinity Hospital, also in Minot. The deputy declined to take Boehler to the alternative hospital because "they did not have anyone qualified on duty at that time."

At the administrative hearing, Boehler challenged the admission of the results of the blood-alcohol test, arguing he was denied his opportunity to an independent test as provided in NDCC Sec. 39-20-02, and that the first test, therefore, was not fairly administered. The hearing officer found that Boehler was not prevented from having his own test conducted, that he was fairly tested, and that the test results showed he had a blood-alcohol content over ten one-hundredths of one percent by weight. Accordingly, Boehler's driver's license was suspended. The district court affirmed the administrative decision and Boehler now challenges the administrative finding that he was given an opportunity for an independent test of his blood-alcohol content.

When we examine findings of fact made by an administrative decision-maker, we look to see if they are supported by a preponderance of the evidence. NDCC Sec. 28-32-19(5). In determining whether an agency's findings of fact are supported by a preponderance of the evidence, we do not make independent findings of fact or substitute our judgment for that of the administrative decision-maker, but determine only whether a reasoning mind reasonably could have determined that the factual conclusions were proved by the weight of the evidence. Evans v. Backes, 437 N.W.2d 848, 849 (N.D.1989).

Section 39-20-02, NDCC, provides, in part, that a person having a blood sample taken for toxicological testing at the direction of a law enforcement officer

"may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer with all costs of an additional test or tests to be the sole responsibility of the person charged. The failure or inability to obtain an additional test by a person does not preclude the admission...