Bollin v. NORTH DAKOTA DEPT. OF TRANSP., 20040291.

• Decision Date: 17 May 2005
• Docket Number: No. 20040291.,20040291.
• Court: North Dakota Supreme Court
• Parties: Eric Scott BOLLIN, Petitioner and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

696 N.W.2d 527

2005 ND 91

Eric Scott BOLLIN, Petitioner and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

No. 20040291.

Supreme Court of North Dakota.

May 17, 2005.

Timothy Q. Purdon, Dickson & Purdon, Bismarck, ND, for petitioner and appellee.

Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellant.

PER CURIAM.

[¶ 1] The North Dakota Department of Transportation ("Department") appeals from a district court judgment reversing the administrative hearing officer's suspension of Eric Scott Bollin's driving privileges for 365 days after he was arrested for driving under the influence of alcohol. We affirm.

I.

[¶ 2] Burleigh County Deputy Sheriff Kirk Hagel stopped Bollin after observing Bollin's car cross the center line of the highway. Deputy Hagel smelled alcohol and observed Bollin's eyes were bloodshot and glassy, and Bollin admitted he had consumed alcohol. Bollin failed the field sobriety tests and registered a blood alcohol concentration of 0.089 percent by weight on the onsite breath screening test. Deputy Hagel arrested Bollin for driving under the influence of alcohol and took him to a hospital for blood testing.

[¶ 3] The nurse administering the test twice attempted to obtain a blood sample from Bollin. The first attempt collected an insufficient amount of blood, but the second attempt was successful. Analysis of the second sample indicated a blood alcohol concentration of 0.12 percent by weight. Bollin received a temporary operator's permit and requested an administrative hearing.

[¶ 4] Bollin objected at the administrative hearing to admission of the test results. When asked to specify his objection, Bollin's counsel replied that he would specify the objection after cross-examination. The hearing officer admitted the results over the objection.

[¶ 5] Bollin's counsel questioned Deputy Hagel and the state toxicologist about the use of disinfectant during the collection of Bollin's blood sample. The nurse who collected the sample indicated on the checklist that she had used the disinfectant that came with the kit, but she also marked that an alternative disinfectant had been used. The line for providing the name of the alternative disinfectant was left blank. The state toxicologist testified that the level of alcohol in the disinfectant could affect the test results, and without knowing what disinfectant was used, she could not testify the results were accurate. Deputy Hagel testified he was present when the sample was obtained, and he did not recall the nurse using an alternative disinfectant. He admitted he was not one hundred percent certain an alternative disinfectant had not been used, and he acknowledged that only the nurse could testify with complete certainty.

[¶ 6] The administrative hearing officer decided it was more likely the nurse inadvertently checked an extra box on the form than used an alternative disinfectant without Deputy Hagel realizing it and suspended Bollin's license for 365 days. Bollin appealed and the district court reversed the suspension.

II.

[¶ 7] Although on appeal this Court reviews the record before the administrative agency, Ringsaker v. Director, N.D. Dep't of Transp., 1999 ND 127, ¶ 5, 596 N.W.2d 328, the district court's sound reasoning is entitled to respect, Lee v. N.D. Dep't of Transp., 2004 ND 7, ¶ 8, 673 N.W.2d 245. This Court will affirm an 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.

Id.; N.D.C.C. § 28-32-46.

[¶ 8] This Court has previously articulated its process for reviewing agency decisions:

We give great deference to the Department's findings of fact, and we do not make independent findings or substitute our judgment for that of the Department; rather, we determine only whether a reasoning mind reasonably could have concluded the Department's findings were supported by the weight of the evidence from the entire record.

Lee, 2004 ND 7, ¶ 9, 673 N.W.2d 245. "In reviewing a suspension, the Court determines only whether a reasoning mind could have concluded the Department's findings were supported by the weight of the evidence from the entire record." Id.

[¶ 9] Bollin argues the administrative hearing officer should not have received the results of the blood test when there is evidence the test was not administered in accordance with the approved method. "The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist." N.D.C.C. § 39-20-07(5).

[¶ 10] The method approved by the state toxicologist requires completion of a form entitled Submission for Blood (104), including specification of the type of alternative disinfectant used if such use is indicated. The form for Bollin's sample indicates use of both the disinfectant included in the kit and an unidentified alternative disinfectant. Deputy Hagel, who assisted the nurse collecting the specimen, testified that he did not recall her using another disinfectant, but the events had occurred over a month before the trial and he did not clearly remember everything. [¶ 11] This Court has previously said "[w]hen the State fails to establish compliance with the toxicologist's directions, which go to the scientific accuracy of the test, the State must prove fair administration through expert testimony." Lee, 2004 ND 7, ¶ 16,673 N.W.2d 245. The state toxicologist stated she could not testify to the accuracy of Bollin's test results without knowing which alternative disinfectant was used. Deputy Hagel testified he did not clearly remember which disinfectant was used and acknowledged only the nurse who collected the blood sample could testify with complete certainty. The nurse who collected the blood specimen did not testify at trial, and the...