Buck v. North Dakota State Highway Com'r

• Citation: 425 N.W.2d 370
• Decision Date: 28 June 1988
• Docket Number: No. 870338,870338
• Parties: Fred A. BUCK, Petitioner and Appellee, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 370

425 N.W.2d 370

Fred A. BUCK, Petitioner and Appellee, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellant.

Civ. No. 870338.

Supreme Court of North Dakota.

June 28, 1988.

Gilje, Greenwood & Dalsted, Jamestown, for petitioner and appellee; argued by John E. Greenwood.

Steven Francis Lamb (argued), Asst. Atty. Gen., State Highway Dept., Bismarck, for respondent and appellant.

GIERKE, Justice.

The North Dakota State Highway Commissioner appeals from a district court judgment reversing the revocation of Fred A. Buck's driving privileges. We reverse and remand.

Following his July 17, 1987, arrest for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor in violation of Sec. 39-08-01, N.D.C.C., Buck requested and received an administrative hearing under Sec. 39-20-05(3), N.D.C.C. The issues at the hearing were: (1) whether the law enforcement officer had reasonable grounds to believe Buck was in actual physical control of a vehicle in violation of Sec. 39-08-01, N.D.C.C., or equivalent ordinance; (2) whether Buck was arrested; and (3) whether Buck refused to submit to a test to determine the alcohol content of his blood.

James Scherbenske, a Jamestown police officer, testified that at 1:40 a.m.:

"While on routine patrol checking buildings, I observed a vehicle that was parked in the Hillcrest Golf Course north parking lot. The defendant, Fred Buck was sitting behind the driver's wheel, the keys were in the ignition but the engine wasn't running. I observed a can of beer ... Schmidt beer that was ... the contents of which were partially gone was sitting on the dashboard. ¹ The defendant was not conscious and it took him several ... took me several attempts to wake him up. When I asked for identification he made several attempts looking for his wallet, which he finally found under the front seat. There was a strong odor of alcohol coming from inside the vehicle. I then had the defendant exit the vehicle, which he did, and I could smell a strong odor of alcohol on the defendant's breath. His eyes were bloodshot and his pupils were dilated."

He also testified that he administered field sobriety tests and arrested Buck, who refused to submit to a Breathalzyer test.

Buck testified that he played golf, ate, and played cards until "about 10:30, 11:00," when "everybody was going to go home" and:

"So I got in my car and I didn't feel very good. I felt intoxicated and I didn't feel that I could drive. I live four miles south of town. I didn't feel that I could make that drive. So I felt that I'd sleep it off and, you know, wake up and possibly be sobered up."

He also testified that he had parked the car about 4:30 in the afternoon and had not driven it between then and the time of his arrest and had not attempted to drive it.

The Commissioner's hearing officer made the following findings of fact:

"Findings of fact: that during a routine patrol, Officer Scherbenske observed a vehicle on a public parking area with a person behind the steering wheel. He also noted the keys in the ignition. After arousing the person, the officer detected a strong odor of alcoholic beverage. He noted bloodshot eyes and dilated pupils. The person was given several field sobriety tests, which he performed poorly. The person was placed under arrest for actual physical control and transported to the law enforcement center in Jamestown where he was offered a chemical test of his breath and he refused that test."

The hearing officer concluded that Officer Scherbenske had reasonable grounds to believe that Buck was in actual physical control of a vehicle in violation of Sec. 39-08-01, N.D.C.C., that Buck was arrested, and that he refused a chemical test of his breath. He revoked Buck's driving privileges for a period of two years. On appeal, the district court ordered that the hearing officer's decision be reversed. A judgment was entered that reversed the administrative decision and reinstated Buck's driving privileges.

The issue on appeal is whether or not the Commissioner's hearing officer properly found that Officer Scherbenske had reasonable grounds to believe that Buck was in actual physical control of a motor vehicle in violation of Sec. 39-08-01, N.D.C.C.

Section 39-08-01, N.D.C.C., makes it unlawful to be in actual physical control of a vehicle while under the influence of intoxicating liquor. Buck contends, however, that he was not in actual physical control because he was "sleeping it off", did not drive while intoxicated, and did not intend to drive while intoxicated.

Section 28-32-19, N.D.C.C., ² governs the scope of judicial review of administrative agency decisions and requires affirmance of an administrative agency decision unless one of the six items listed in Sec. 28-32-19, N.D.C.C., is present. Matter of Prettyman, 410 N.W.2d 533, 535 (N.D.1987). "In reviewing the factual basis of administrative orders, there are three critical questions: (1) are the findings of fact supported by a preponderance of the evidence; (2) are the conclusions of law sustained by the findings of fact; and (3) is the agency decision supported by the conclusions of law?" Id., at 536.

From our review of the record, we conclude that the evidence supports the hearing officer's findings of fact, conclusions of law, and decision. Officer Scherbenske's observations provided him with "an articulable and reasonable suspicion that a law has been or is being violated." Wibben v. North Dakota State Highway Comm'r, 413 N.W.2d 329, 331 (N.D.1987). From his observations and Buck's poor performance of field sobriety tests, Officer Scherbenske "could have reasonably concluded that [Buck] was in...