Johnson v. North Dakota Dept. of Transp., 940354

• Decision Date: 19 April 1995
• Docket Number: No. 940354,940354
• Citation: 530 N.W.2d 359
• Parties: John R. JOHNSON, Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 359

530 N.W.2d 359

John R. JOHNSON, Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant.

Civ. No. 940354.

Supreme Court of North Dakota.

April 19, 1995.

Monte L. Rogneby, Asst. Atty. Gen., Bismarck, for appellant.

Thomas A. Dickson, Bismarck, for appellee.

LEVINE, Justice.

The North Dakota Department of Transportation (Department) appeals from a district court judgment reversing the Department's administrative decision to suspend John R. Johnson's driving privileges for driving under the influence of alcohol. We reverse the district court judgment and reinstate the license suspension.

On March 5, 1994, Trooper Rick Michels responded to a State Radio report of a possible drunk driver. Also responding to the report was a Sheriff's deputy working west of Bismarck near Hebron. Michels saw a vehicle matching the description of the alleged drunk driver's car traveling west on I-94 and began to follow it. Michels observed the car weaving in the roadway and saw it cross the center line and the fog line. The Sheriff's deputy waited to assist Michels, if necessary, at Exit 97 on I-94. Michels followed the vehicle for approximately five miles. When the driver exited I-94 at Exit 97, Michels activated his patrol car's lights and pulled the vehicle over. Michels approached the car and asked Johnson for his driver's license. Michels detected an odor of alcoholic beverages on Johnson, and noted that his eyes were bloodshot and glassy. There were several open beers in the car. After Johnson failed several field sobriety tests and an Alco-Sensor screen, Michels placed him under arrest for driving in violation of NDCC Sec. 39-08-01. A blood test showed Johnson had an alcohol concentration of 0.20 percent.

An administrative hearing was held to suspend Johnson's license. Johnson and his passenger at the time of the stop, Ethan Bodmer, both testified at the hearing that, contrary to Michels' testimony, Johnson was not weaving in the roadway, nor did he cross the fog or center lines. However, the hearing officer, expressly finding "Michels' testimony to be credible," determined that Michels had the necessary reasonable and articulable suspicion to stop Johnson, and suspended Johnson's driving privileges for 365 days.

Johnson appealed to the district court, which reversed the Department's decision, holding that "the evidence before the hearing officer does not reveal probable cause to make the stop." ¹ The court explained:

"It is impossible for me to believe that an officer would allow Mr. Johnson to drive for a period of five miles while he was continuously swerving back and forth on the highway. I am satisfied that when the report of the potential DUI came over the state radio, he was determined to arrest Mr. Johnson and upon Johnson exiting the Interstate decided it was appropriate to stop him. In a stop for a misdemeanor, there must be personal observation by the officer that an offense was being committed. To imply that he would watch a driver move back and forth on the Interstate for a period of five miles without doing anything about it is simply unbelievable."

The Department appeals to this court, arguing that the hearing officer's finding that Michels had the necessary reasonable and articulable suspicion to stop Johnson is supported by a preponderance of the evidence in the record. We agree.

Our review of the Department's appeal is governed by the Administrative Agencies Practice Act, NDCC ch. 28-32. Samdahl v. N.D. Dept. of Transp. Dir., 518 N.W.2d 714 (N.D.1994). "Under this chapter, although the analysis of the district court is entitled to respect, our review concerns the findings and decision of the agency and not those of the district court." Wagner v. Sheridan County Social Services Bd., 518 N.W.2d 724, 728 (N.D.1994). On review, we determine only whether the findings of fact are supported by a preponderance of the evidence, whether the conclusions of law are sustained by the findings of fact, and whether the agency decision is supported by the conclusions of law. Maher v. N.D. Dept. of Transp., 510 N.W.2d 601 (N.D.1994).

"[W]hen reviewing the factual findings of an administrative agency we do not make independent findings of fact or substitute our judgment for that of the agency. 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." Bryl v. Backes, 477 N.W.2d 809, 811 (N.D.1991). This standard defers to the hearing officer's opportunity to hear the witnesses' testimony and to judge their credibility and we will not disturb the agency's findings unless they are against the greater weight of the evidence. Maher, 510 N.W.2d at 603; McNamara v. N.D. Dept. of...