Hoover v. Director, Dept. of Transp.

• Decision Date: 15 May 2008
• Docket Number: No. 20070258.,20070258.
• Citation: 2008 ND 87,748 N.W.2d 730
• Parties: Kenneth Paul HOOVER, Petitioner and Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
• Court: North Dakota Supreme Court

748 N.W.2d 730

2008 ND 87

Kenneth Paul HOOVER, Petitioner and Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.

No. 20070258.

Supreme Court of North Dakota.

May 15, 2008.

Michael Ray Hoffman, Bismarck, N.D., for petitioner and appellant.

Michael Trent Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellee.

CROTHERS, Justice.

[¶ 1] Kenneth Paul Hoover appeals from a judgment affirming the Department of Transportation's suspension of his driving privileges for 180 days for driving under the influence of alcohol. We conclude there was sufficient evidence to establish that Hoover was the driver of a vehicle involved in a hit and run accident and that a police officer did not violate Hoover's Fourth Amendment rights by making a warrantless entry into Hoover's bedroom. We affirm.

I

[¶ 2] At 9:50 p.m. on March 3, 2007, Nicole Heintz was driving south on north Washington Street in Bismarck and stopped in the left turn lane to turn east on Boulevard Avenue. While Heintz was stopped, a "little red ... kind of a sports car" turning north from Boulevard Avenue struck the front of her vehicle and continued north until it became stuck in snow along the side of the road. Heintz noted the license plate number, called police with her cell phone, and then saw that the red car was leaving, heading north. It was dark at the time, and Heintz and a witness to the accident were unable to identify the driver of the red car or ascertain whether the car contained any other occupants. The witness saw the red car turn east on Sioux Avenue. Officer Jerry Stein from the Bismarck Police Department arrived on the scene at 9:55 p.m. Heintz and the witness told Stein what had happened and gave him the license plate number. Stein ran the license plate number through dispatch and learned the vehicle was a 1993 Ford Probe registered to Hoover who lived on north Washington Street about one and one-half blocks from the scene of the accident. Stein went to Hoover's address but did not see the red car.

[¶ 3] Stein knocked on the door of the house, and Hoover's son answered. Hoover's son's girlfriend was also in the room. Hoover soon came to the door. Stein told him he was investigating a motor vehicle accident and asked him if he was okay. Stein believed Hoover was "very intoxicated" because:

"[Hoover] [h]ad a difficult time standing. Kept leaning against the walls, doors, to maintain his balance, almost falling over several times. His speech was very slurred. He had a hard time understanding my questioning. His eyes were glazed over and bloodshot. I could detect a strong odor of alcohol ... respirated alcohol coming from his breath."

Hoover told Stein he had not been driving that evening. Stein asked Hoover if he could see the car, and Hoover "invited me into the house to look at the vehicle," which was parked in an attached garage. According to Stein, Hoover "actually opened the door, ... and he stepped aside and said ... motioned for me to come on in."

[¶ 4] At the administrative hearing, Stein described what followed:

"OFFICER STEIN: [B]oth he and I walked over to the garage, and then the garage was about five steps down to the garage that were steep. And he couldn't walk down them due to his intoxication, so he stayed at the top of the steps, while I looked at the vehicle and could see damage to the front driver's side portion. I touched the hood, and it was warm to the touch, and I could feel steam radi ... or heat radiating from it. There was also mist in the garage, as though, I believe it was radiator fluid that was leaking and then dispersing into the air.

MS. VARVEL: Any other observations?

[OFFICER STEIN]: I continued to ask him what was going on, and if he was hurt, and he kept on trying to get away from me to get to his bedroom. That's when he told me he was at Los Amigos and had a couple of shots. So then he said he had to get his registration card out of his bedroom, which was up about five steps from where the entrance to the garage is.

MS. VARVEL: Then what happened?

OFFICER STEIN: As we got to his bedroom, he stumbled over to his dresser, grabbed a bottle of whiskey off the top of the dresser, which was ... it was on the other side from the bedroom, ten to twelve feet away. Took the cork off the bottle of whiskey, and at that time I grabbed the bottle out of his hand, and he pulled away from me. And I took the bottle of whiskey from him before he had a chance to drink anything from it and forcibly took him to the ground in straight arm bar.

MS. VARVEL: What happened next?

OFFICER STEIN: I was able to achieve compliance through a pressure-point control tactic, and I handcuffed Mr. Hoover and told him he was under arrest for DUI. That's when he stated that he'd F'd up."

Hoover consented to a blood test which was taken at 10:56 p.m. The results showed a blood-alcohol concentration of .26 percent.

[¶ 5] Following the administrative hearing, the Department suspended Hoover's driving privileges for 180 days. The hearing officer concluded Stein had reasonable grounds to believe Hoover had been driving under the influence of alcohol in violation of N.D.C.C. § 39-08-01 at "the time he was involved in a two-vehicle accident as a driver." Hoover appealed to district court, arguing there was insufficient evidence he was driving and arguing Stein illegally entered his bedroom without a warrant. The district court ruled Stein had probable cause to arrest Hoover for driving under the influence and Hoover's constitutional rights were not violated when Stein entered his bedroom.

II

[¶ 6] Our review of an administrative suspension of a driver's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Brewer v. Ziegler, 2007 ND 207, ¶ 4, 743 N.W.2d 391. We will affirm the 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."

N.D.C.C. § 28-32-46.

[¶ 7] This Court "review[s] an appeal from the determination of an administrative agency based only on the record filed with the court." N.D.C.C. § 28-32-46. We do "`not make independent findings of fact or substitute our judgment for that of the agency' when reviewing an administrative agency's factual findings." Sayler v. North Dakota Dep't of Transp., 2007 ND 165, ¶ 7, 740 N.W.2d 94 (quoting Kiecker v. North Dakota Dep't of Transp., 2005 ND 23, ¶ 8, 691 N.W.2d 266). "We determine only whether a reasoning mind reasonably could have determined the factual conclusions reached were proved by the weight of the evidence from the entire record." Sayler, at ¶ 7. "`If the hearing officer's findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law, we will not disturb the decision.'" Brewer, 2007 ND 207, ¶ 4, 743 N.W.2d 391 (quoting Borowicz v. North Dakota Dep't of Transp., 529 N.W.2d 186, 187 (N.D.1995)). "[W]e ... review questions of law de novo." Sayler, at ¶ 7.

A

[¶ 8] Hoover argues the Department erred in concluding Officer Stein had reasonable grounds to believe that Kenneth Hoover had been driving under the influence.

[¶ 9] One of the determinations the Department must make to suspend a driver's license under N.D.C.C. § 39-20-05(2) is "whether the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle" while under the influence of alcohol. The term "reasonable grounds" used in N.D.C.C. § 39-20-05 is synonymous with the term "probable cause." Rist v. North Dakota Dep't of Transp., 2003 ND 113, ¶ 15, 665 N.W.2d 45; Henderson v. Dir., North Dakota Dep't of Transp., 2002 ND 44, ¶ 8, 640 N.W.2d 714. "`Probable cause to arrest exists when the facts and circumstances within police officers' knowledge and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed.'" Rist, at ¶ 15 (quoting Henderson, at ¶ 8). Knowledge of facts sufficient to establish guilt is not necessary to establish probable cause. State v. Berger, 2004 ND 151, ¶ 11, 683 N.W.2d 897. The totality of the circumstances must be considered. Id. "[T]he hearing officer's ultimate determination that the facts found meet the legal standard that the arresting officer had reasonable grounds to believe [a person] had been driving a vehicle in violation of section 39-08-01 is a question of law fully reviewable on appeal." Stanton v. Moore, 1998 ND 213, ¶ 10, 587 N.W.2d 148.

[¶ 10] Hoover argues the evidence is insufficient because the witnesses to the accident were unable to identify the driver and because he told Stein he had not been driving that evening. However, eyewitness testimony is not necessary to establish reasonable grounds to believe a person was driving under the influence; circumstantial evidence is sufficient. See Stanton, 1998 ND 213, ¶¶ 14-16, 587 N.W.2d 148; State v. Rieger, 281 N.W.2d 252, 255 (N.D.1979); State v. Emmil, 172 N.W.2d 589, 591 (N.D.1969).

[¶ 11] Here, the witnesses described...