Filkowski v. Dir., N.D. Dep't of Transp.

• Decision Date: 28 April 2015
• Docket Number: No. 20140290.,20140290.
• Citation: 862 N.W.2d 785
• Parties: Michael Dale FILKOWSKI, Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: North Dakota Supreme Court

862 N.W.2d 785

Michael Dale FILKOWSKI, Appellant

v.DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

No. 20140290.

Supreme Court of North Dakota.

April 28, 2015.

Michael R. Hoffman, Bismarck, N.D., for appellant.

Douglas B. Anderson, Office of Attorney General, Bismarck, N.D., for appellee.

Opinion

CROTHERS, Justice.

[¶ 1] Michael Filkowski appeals from a district court judgment affirming the Department of Transportation hearing officer's decision suspending his driving privileges for 91 days. We affirm, concluding the Department had authority to suspend Filkowski's driving privileges and the hearing officer did not err in admitting the analytical report containing the results of Filkowski's blood test.

I

[¶ 2] On October 5, 2013, McKenzie County Deputy Sheriff Travis Bateman stopped Filkowski's vehicle after he observed the vehicle weave, leave the roadway on a curve and cross over the center line and into the lane for oncoming traffic. When Bateman approached the vehicle, he observed an odor of alcohol, noted Filkowski had bloodshot watery eyes and slurred speech. Highway Patrol Trooper Chelsey Schatz arrived at the scene of the stop and took over the investigation. Schatz noticed an odor of alcohol and Filkowski's speech was mumbled and slurred. Filkowski had difficulty exiting his vehicle, and Schatz noted his walking was erratic. Filkowski failed the field sobriety tests. Schatz read him the implied consent advisory, and Filkowski agreed to take an onsite screening test. The test was administered and indicated a 0.151 alcohol concentration. Filkowski was arrested for driving under the influence of alcohol and was informed of the implied consent advisory. He agreed to take a chemical blood test. A blood sample was collected and submitted to the state crime laboratory. The test results showed an alcohol concentration of 0.166 g/100ml.

[¶ 3] Filkowski requested an administrative hearing, arguing the Department did not have jurisdiction to suspend his license because a portion of Form 104, the blood collection and submission form, was not forwarded to the Department's director. Filkowski also objected to the admission of the analytical report of the blood test because it used the word “ethanol,” which did not comply with the statute defining alcohol concentration. He also claims the Department failed to show the approved method for conducting blood analysis was used and no evidence showed who performed the blood-alcohol analysis.

[¶ 4] The hearing officer admitted the analytical report and foundational documents and suspended Filkowski's license for 91 days. The hearing officer found the blood sample was submitted to the state crime laboratory according to approved procedure, the blood sample was analyzed by a qualified analyst on an approved device and according to the approved method, the test was fairly administered and the test results showed an alcohol concentration of 0.166 g/100ml, which exceeded the legal limit. Filkowski appealed and the district court affirmed the hearing officer's decision.

II

[¶ 5] The Administrative Agencies Practice Act, N.D.C.C. ch. 28–32, governs our review of a hearing officer's decision suspending a driver's license. Barros v. N.D. Dep't of Transp., 2008 ND 132, ¶ 7, 751 N.W.2d 261. We must affirm the agency's order 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.”

N.D.C.C. § 28–32–46.

[¶ 6] We give the agency's decision great deference, and “[w]e do not make independent findings of fact or substitute our judgment for that of the agency.” Keller v. N.D. Dep't of Transp., 2015 ND 9, ¶¶ 4–5, 858 N.W.2d 316 (quoting Fossum v. N.D. Dep't of Transp., 2014 ND 47, ¶ 9, 843 N.W.2d 282). “We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Barros, 2008 ND 132, ¶ 8, 751 N.W.2d 261 (quoting Kiecker v. N.D. Dep't of Transp., 2005 ND 23, ¶ 8, 691 N.W.2d 266). A hearing officer's evidentiary rulings are reviewed under the abuse of discretion standard. Potratz v. N.D. Dep't of Transp., 2014 ND 48, ¶ 7, 843 N.W.2d 305. “A hearing officer abuses her discretion when she acts in an arbitrary, unreasonable, or capricious manner or misapplies or misinterprets the law.” Dawson v. N.D. Dep't of Transp., 2013 ND 62, ¶ 12, 830 N.W.2d 221. Questions of law are fully reviewable. Barros, at ¶ 8.

III

[¶ 7] Filkowski argues the Department had no authority to suspend his driving privileges because the arresting officer failed to send the bottom portion of Form 104, the specimen submitter's checklist, to the Department's director. He argues that N.D.C.C. § 39–20–03.1(4) requires the arresting officer send the director a copy of the certified copy of the analytical report for the blood test and the completed specimen submitter's checklist, which is part of the approved method and that the director does not have the required evidence showing the approved method was followed if the director does not receive the checklist.

[¶ 8] “The Department's authority to revoke or suspend a person's driving privileges is given by statute, and the Department must meet the basic and mandatory provisions of the statute to have authority to revoke or suspend a person's driving privileges.” Keller, 2015 ND 9, ¶ 7, 858 N.W.2d 316 (quoting Haynes v. Dir., Dep't of Transp., 2014 ND 161, ¶ 8, 851 N.W.2d 172). In determining whether the Department has authority to act under a statute, the statute “must be construed logically so as not to produce an absurd result.” Keller, at ¶ 7.

[¶ 9] Section 39–20–03.1, N.D.C.C., “establishes the prerequisite for the exercise of DOT's jurisdiction” and “the Department must comply with the basic mandatory provisions of [the] statute.” Wingerter v. N.D. Dep't of Transp., 530 N.W.2d 362, 364 (N.D.1995) (quoting Bosch v. Moore, 517 N.W.2d 412, 413 (N.D.1994) ). When a driver submits to a chemical test and the test shows the driver has an alcohol concentration of at least eight one-hundredths of one percent by weight, law enforcement must forward to the Department's director a certified written report and “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 or urine test

for all tests administered at the direction of the officer.” N.D.C.C. § 39–20–03.1(4).

[¶ 10] This Court concluded the statute plainly and unambiguously requires the officer forward to the director only a copy of the certified copy of the analytical report for a blood test. Wingerter, 530 N.W.2d at 364 (interpreting a prior version of N.D.C.C. § 39–20–03.1, containing the same language at issue in this case). We explained, “the statute does not require transmission of all test records of urine ... or blood tests

; it only requires transmission of a certified copy of the analytical report for each test administered.” Id. at 365. Filkowski does not dispute that a certified copy of the analytical report for the blood test was sent to the director. The arresting officer was not required to send the specimen submitter's checklist to the director for the Department to obtain authority to suspend driving privileges; however, a completed checklist may be introduced as evidence at an administrative hearing to prove fair administration, chain of custody and compliance with the approved testing method. See N.D.C.C. § 39–20–07(7) ; State v. Jordheim, 508 N.W.2d 878, 881 (N.D.1993). We conclude the Department has authority to suspend Filkowski's driving privileges.

IV

[¶ 11] Filkowski argues the hearing officer erred in admitting the analytical report containing the blood test results and other foundational documents. Section 39–20–07, N.D.C.C., governs the admission of blood-alcohol test reports and allows the use of certified documents to establish an evidentiary foundation for the report.See also Jordheim, 508 N.W.2d at 881.

[¶ 12] Under N.D.C.C. § 39–20–07(5), “[t]he 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 director of the state crime laboratory or the director's designee....” Four foundational elements must be documented or demonstrated for the admission of the test report: (1) the sample must be properly obtained, (2) the test must be fairly administered, (3) the method and devices used to test the sample must be approved by the director of the state crime laboratory or the director's designee, and (4) the blood test must be performed by an authorized person or by one certified by the director of the state crime laboratory or the director's designee as qualified to perform it. Schlosser v. N.D. Dep't of Transp., 2009 ND 173, ¶ 9, 775 N.W.2d 695; see also Frank v. Director, N.D. Dep't of Transp., 2014 ND 158, ¶¶ 9–10, 849 N.W.2d 248. Whether a blood test was fairly administered is a preliminary question of admissibility left to the hearing officer's discretion. See Potratz, 2014 ND 48, ¶ 21, 843 N.W.2d 305; State v. Keller, 2013 ND 122, ¶ 15, 833...