Ding v. Director, North Dakota Dept. of Transp., 910381

• Decision Date: 23 April 1992
• Docket Number: No. 910381,910381
• Citation: 484 N.W.2d 496
• Parties: Blane Giles DING, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 496

484 N.W.2d 496

Blane Giles DING, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION Respondent and Appellant.

Civ. No. 910381.

Supreme Court of North Dakota.

April 23, 1992.

Gregory B. Gullickson (argued), Asst. Atty. Gen., Atty. Gen. Office, Bismarck, for respondent and appellant.

Thomas M. Tuntland (argued), Mandan, for petitioner and appellee.

ERICKSTAD, Chief Justice.

The Director of the Department of Transportation appeals from a district court judgment reversing the Director's suspension of Blane Ding's driving privileges for ninety-one days. We reverse.

On April 25, 1991, Officer Stepp observed a white pickup in the First Street Southeast area of Mandan. When Stepp observed this pickup jump the curb and go back down onto the roadway, almost striking a parked vehicle, Stepp activated his lights but the pickup did not stop; instead, it turned onto Ninth Avenue Southeast. The pickup "pulled into" the driveway to Ding's home, and Ding exited the vehicle. He proceeded toward Stepp. Stepp observed him sway as he walked, and smelled the odor of alcohol. When asked if he had been drinking, Ding told Stepp that he had. Stepp then administered a series of field sobriety tests which Ding inadequately performed. Stepp placed Ding under arrest for driving while under the influence, and took him to Mandan Medcenter One for a blood analysis.

At Mandan Medcenter One, Registered Nurse Mary Puffe extracted blood from Ding. This blood was placed in a vial which was part of a kit issued by the State Toxicologist. Stepp observed the extraction of the blood and its placement into the vial. Stepp filled in a Report and Notice Under Chapter 39-20 N.D.C.C. (Report and Notice Form), supplying information about Ding, the occurrence, type of specimen taken, and the Officer's Statement of Probable Cause. Stepp then signed the report dated April 25, 1991. ¹ The blood was sent to the State Toxicologist for analysis. ² The analytical report from the State Toxicologist found Ding's sample to be .21 percent blood alcohol by weight. Several days later, when Stepp received this information, he inserted the figure in the designated blank on the form he had previously signed. On May 17, 1991, he issued a temporary operator's permit to Ding.

A hearing was held at the Mandan Law Enforcement Center on June 4, 1991. At this hearing, Ding, in essence, argued that, as the Report and Notice Form was signed prior to the insertion of the blood alcohol content information, the Director did not have authority to act under section 39-20-04.1(1), N.D.C.C., ³ because the Report and Notice Form was not properly certified. Section 39-20-03.1(3), N.D.C.C., requires that the law enforcement officer forward to the Director "a certified written report in the form required by the commissioner [director]," which is the Report and Notice Form. ⁴ The hearing officer made certain findings of fact ⁵ and conclusions of law, ⁶ and suspended Ding's license for ninety-one days. From the hearing officer's findings, it is clear that he believed that everything was properly completed and submitted under chapter 39-20, N.D.C.C. Ding appealed to the district court where his suspension was reversed, and the Director appeals to this Court.

On review of a license suspension, we review the agency's decision and not that of the district court. Bryl v. Backes, 477 N.W.2d 809, 811 (N.D.1991); Schwind v. Director, Department of Transportation, 462 N.W.2d 147, 149 (N.D.1990). Our review is limited to the record before the Department of Transportation. Bryl, 477 N.W.2d at 811. We do not consider the findings of the district court on review. Id.

Our review is limited by section 28-32-19, N.D.C.C. Generally, we determine only whether or not: (1) The findings of fact are supported by a preponderance of the evidence. (2) The conclusions of law are supported by the findings. (3) The agency decision is supported by the conclusions of law. Bryl, 477 N.W.2d at 811. We do not substitute our judgment for that of the agency, but only determine if a reasoning mind could have determined that the factual conclusions were proved by the weight of the evidence presented. Id. (citing Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979)).

In this case there are no factual disputes, but Ding argues that because the Report and Notice Form was not complete when Officer Stepp signed it, it could not provide jurisdiction to the Director under North Dakota law. We disagree.

The legislature has established what is required before the state can revoke a person's driving privileges. Section 39-20-03.1, N.D.C.C., reads:

"If a person submits to a test under section 39-20-01, 39-20-02, or 39-20-03 and the test shows that person to have a blood alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle, the following procedures apply:

1. The law enforcement officer shall immediately take possession of the person's operator's license if it is then available and shall immediately issue to that person a temporary operator's permit if the person then has valid operating privileges, extending driving privileges for the next twenty-five days, or until earlier terminated by the decision of a hearing officer under section 39-20-05. The law enforcement officer shall sign and note the date on the temporary operator's permit. The temporary operator's permit serves as the commissioner's [director's] official notification to the person of the commissioner's [director's] intent to revoke, suspend, or deny driving privileges in this state.

* * * * * *

3. The law enforcement officer, within five days of the issuance of the temporary operator's permit, shall forward to the commissioner [director] a certified written report in the form required by the commissioner [director] and the person's operator's license taken under subsection 1 or 2. If the person was issued a temporary operator's permit because of the results of a test, the report must show that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01, or equivalent ordinance, that the person was lawfully arrested, that the person was tested for blood alcohol concentration under this chapter, and that the results of the test show that the person had a blood alcohol concentration of at least ten one-hundredths of one percent by weight. In addition to the operator's license and report, the law enforcement officer shall forward to the commissioner [director] a certified copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for a blood, saliva, or urine test for all tests administered at the direction of the officer."

The purpose of chapter 39-20 is to protect the public by preventing persons under the influence of intoxicants from driving. Schwind v. Director, Department of Transportation, 462 N.W.2d 147, 150 (N.D.1990).

In Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739 (N.D.1980), this Court stated:

"Proceedings under Chapter 39-20 of the North Dakota Century Code are civil in nature. The purpose of the implied consent law is to discourage individuals from driving an automobile while under the influence of intoxicants; to revoke the driving privileges of those persons who do drive while intoxicated; and to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication. To further this objective, the Implied Consent Act provides for civil administrative proceedings in appropriate instances. These proceedings are separate and distinct from the criminal proceedings which may ensue from the arrest of an offending motorist. A dismissal or acquittal of the related criminal charge is irrelevant to the disposition of the revocation proceedings."

Asbridge, 291 N.W.2d at 750.

Ding argues that because the Report and Notice Form was certified by Officer Stepp on April 25, 1991, and the blood analysis result was not available until several days later, the inclusion of that result on a form which had been previously certified, but not transmitted to the Director is error and strips the Director of jurisdiction of this case.

The Director argues that this procedure should not deprive the Director of jurisdiction. The Director argues that this information could be easily verified because the analytical test result form from the State Toxicologist is required to accompany the Report and Notice Form when it is transmitted to the Director. Also, the Director argues that there is trustworthiness from the fact that the same officer who originally completed the Report and Notice Form without the blood alcohol concentration being included, later filled in the blood alcohol concentration result. ⁷ The Director, in essence, asserts that this later inclusion of the result was obvious from the face of the form, and we detect no intent to deceive on the part of the officer. In our view, the Director should not be deprived of jurisdiction when all of the requirements of the statute have been met. The hearing officer heard the evidence, and, specifically, found that the report was "properly completed and had all the information that the commissioner [director] needed and as required by 39-20-03.2 subparagraph 3." ⁸

The inclusion of the test result from the State Toxicologist is required in the form however, the officer cannot independently determine in advance of the Toxicologist's analysis what the result is. The officer has merely inserted the result in the designated part of the Report and Notice Form when he received it from the State Toxicologist. That result is only as correct as the analysis from the State Toxicologist. Any certification of that...