Dodds v. North Dakota State Highway Com'r, 10623

• Citation: 354 N.W.2d 165
• Decision Date: 27 July 1984
• Docket Number: No. 10623,10623
• Parties: Steven DODDS, Petitioner and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 165

354 N.W.2d 165

Steven DODDS, Petitioner and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellee.

Civ. No. 10623.

Supreme Court of North Dakota.

July 27, 1984.

Vinje Law Firm, Bismarck, for petitioner and appellant; argued by Ralph A. Vinje, Bismarck.

Robert E. Lane, Asst. Atty. Gen., North Dakota State Highway Dept., Bismarck, for respondent and appellee; argued by Robert E. Lane, Asst. Atty. Gen., Bismarck.

ERICKSTAD, Chief Justice.

Steven J. Dodds appeals from a judgment entered by the District Court of Burleigh County on November 29, 1983, which affirmed an administrative decision suspending his driver's license pursuant to Section 39-20-04.1, N.D.C.C., for being in physical control of a vehicle while having a blood alcohol concentration of at least ten one-hundredths of one percent by weight. ¹ We affirm.

On August 14, 1983, at approximately 1:38 a.m., Dodds was placed under arrest by Officer Richard L. Schaible of the Bismarck Police Department for being in actual physical control of a vehicle upon a highway while under the influence of intoxicating liquor. See Sec. 39-08-01(2)(b), N.D.C.C. Dodds submitted to a test of his breath pursuant to Section 39-20-01, N.D.C.C., which, when administered at 2:25 a.m., showed that he had a blood alcohol concentration of .16 percent by weight. An administrative hearing was held on August 29, 1983, at the request of Dodds, following notification by the North Dakota State Highway Department of the department's intent to suspend Dodds' driving privileges.

The administrative hearing, civil in nature [Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739, 750 (N.D.1980) ], is limited in scope by statute to cover only the following issues:

(1) "whether the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of 39-08-01 or equivalent ordinance;"

(2) "whether the person was placed under arrest;"

(3) "whether the person was tested in accordance with section 39-20-01 or 39-20-03 and, if applicable, section 39-20-02; and"

(4) "whether, based on a review of the test procedures and results, the person had a blood alcohol concentration of at least ten one-hundredths of one percent by weight." Sec. 39-20-05(2), N.D.C.C.

After hearing the evidence presented, the administrative hearing officer, Mr. Breen Kennelly, made the following findings of fact, conclusions of law, and decision:

"Findings of Fact:

"Officer Schaible was called to a described vehicle that was parked with its engine running and Mr. Dodds was asleep at the wheel. There were open containers in the vehicle. When awakened, Officer Schaible detected a strong odor of alcohol on his breath and that his eyes were bloodshot. Mr. Dodds was given three balance and dexterity tests which he was unable to complete. Officer Schaible placed Mr. Dodds under arrest for being in actual physical control of a motor vehicle while under the influence of alcohol. He offered Mr. Dodds a chemical test which Mr. Dodds submitted to. It showed his blood contained over .10% blood alcohol content.

"Conclusions of Law:

"I find Officer Schaible had the grounds to believe Mr. Dodds was in control of his vehicle while under the influence of alcohol. I find Mr. Dodds was placed under arrest for actual physical control of a vehicle while under the influence of alcohol. I find Mr. Dodds was tested in accordance with section 39-20-01. I find after a review of the test procedures and results that Mr. Dodds had a blood alcohol content of .10% or more.

"Decision Of Hearing Officer: Suspend."

Dodds appealed the decision of the administrative hearing officer to the district court pursuant to Section 39-20-06, N.D.C.C., ² designating as error the admission at the hearing of the results of the chemical analysis "despite unrebutted expert testimony that the breathalyzer in question might well be subject to radio frequency interference." The expert testimony referred to by Dodds was that of Mr. Kenneth B. Vollmer, who testified concerning the alleged susceptibility of the Smith and Wesson Model 900A Breathalyzer, a breath alcohol testing device apparently in use by the Bismarck Police Department, to radio frequency interference. ³ The district court found that there existed sufficient evidence to warrant the conclusion reached by the hearing officer and affirmed the decision.

Dodds raises the following issue on appeal to this Court:

"Did the district court err in determining that the administrative hearing officer was correct in ignoring unrebutted expert testimony and proceeding as if it had never been offered?"

Dodds primarily objects to a statement made in the district court's opinion:

"Section 39-20-06 requires the court to affirm the commissioner's decision unless it finds the evidence insufficient to warrant the conclusion reached. In this case the Court concludes the evidence was sufficient. The distinction is not whether the evidence was 'good enough' but whether there was enough evidence." [Emphasis added.]

The above-emphasized language may have been the district's court's method of articulating its standard of review of the decision of an administrative hearing officer pursuant to Section 39-20-06, N.D.C.C.; nevertheless, it is not the function of this Court to review the district court's decision. In an appeal of a district court's judgment involving an order of suspension, revocation, or denial issued by the State Highway Commissioner under Section 39-20-04 or Section 39-20-04.1, N.D.C.C., the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C., applies [see Hammeren v. North Dakota State Highway Commissioner, 315 N.W.2d 679, 683 (N.D.1982); Asbridge v. North Dakota State Highway Com'r, supra, 291 N.W.2d at 743; Agnew v. Hjelle, 216 N.W.2d 291, 294 (N.D.1974) ]; therefore, in reviewing the evidence in this case, we look to the record compiled before the administrative agency and not to the findings of the district court. Shark Brothers, Inc. v. Peterson, 345 N.W.2d 376, 379 (N.D.1984); Hammeren v. North Dakota State Highway Com'r, supra; Asbridge, supra.

Our role in reviewing the factual basis of an administrative decision is limited to a consideration of the following 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? (3) Is the agency decision supported by the conclusions of law?" Asbridge, supra. This Court also considers whether the decision violates constitutional rights or is not in accordance with the law. See Sec. 28-32-19, N.D.C.C. ⁴ We exercise restraint in reviewing the findings of an administrative agency; we do not substitute our judgment for that of the agency. Asbridge, supra, 291 N.W.2d at 744.

Dodds argues that the administrative hearing officer disregarded the expert testimony of Mr. Vollmer and "did not address the question of the possibility that the breathalyzer test was not fairly administered." The administrative hearing officer's conclusion, i.e., "I find after a review of the test procedures and results that Mr. Dodds had a blood alcohol content of .10% or more," seems to imply that the hearing officer did, however, consider the expert testimony.

In Gardebring v. Rizzo, 269 N.W.2d 104, 109 (N.D.1978), a case involving parental visitation rights, the custodial parent asserted that it was improper for the trial court to arbitrarily disregard the uncontradicted and unimpeached opinion evidence of experts to the effect that a non-custodial parent should have no legally enforceable right of visitation. We said:

"The rule in North Dakota as to the effect to be given expert testimony is clear. The credibility of expert witnesses, and the weight to be given their testimony, are matters to be determined by the trier of facts. Waagen v. R.J.B., 248 N.W.2d 815, 819 (N.D.1976); Grabau v. Hartford Accident & Indemnity Co., 149 N.W.2d 361 (N.D.1967); Fisher v. Suko, 111 N.W.2d 360, 363 (N.D.1961); In re Heart River Irr. District, 78 N.D. 302, 330, 49 N.W.2d 217, 232 (1951). We have also said that the trier of fact is not required to accept undisputed testimony, even of experts. Waletzko v. Herdegen, 226 N.W.2d 648, 653 (N.D.1975). Finally, in Syl. p 2 of In re A.N., 201 N.W.2d 118 (N.D.1972), we said:

'2. While expert opinions are helpful, the courts are not required to accept such opinions as being conclusive.'

These cases do not stand for the proposition, though, that the trier of fact can arbitrarily disregard the testimony of experts, or for that matter, the testimony of any witness."

See also Stillwell v. Cincinnati Incorporated, 336 N.W.2d 618, 621 (N.D.1983); Cook v. Jacklitch & Sons, Inc., 315 N.W.2d 660, 663 (N.D.1982); Svetenko v. Svetenko, 306 N.W.2d 607, 610 (N.D.1981).

Mr. Vollmer testified that he has "been in electronics for about 20 years." The first four of those years were spent in the Air Force where he worked specifically with radio frequency interference problems. He testified that he now sells, repairs and programs computers, but has been in contact with radio frequency interference problems several times in dealing with computers and burglar alarm systems.

Mr. Vollmer testified that part of the circuitry of the Smith and Wesson Model 900A Breathalyzer, as "demonstrated through numerous tests done by people in Rhode Island and by the National Bureau of Standards and other people," is susceptible to radio frequency interference which can cause inaccurate test results. He testified that the device "could be susceptible to any of a vast number of frequencies" through a ten-to-twenty second period during the course of the chemical analysis of the breath sample, and discussed a method by which the testing device could be screened from such interference. Vollmer could only speculate, however, as to possible sources of radio frequency interference...