Johnson v. NORTH DAKOTA DEPT. OF TRANSP., 20030339.
| Decision Date | 23 March 2004 |
| Docket Number | No. 20030339.,20030339. |
| Citation | 676 N.W.2d 807,2004 ND 59 |
| Parties | Aaron James JOHNSON, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant. |
| Court | North Dakota Supreme Court |
Justin D. Roness (appeared), Thomas A. Dickson (on brief), and Timothy Q. Purdon (on brief), Dickson & Purdon, Bismarck, N.D., for petitioner and appellee.
Reid A. Brady, Assistant Attorney General (on brief), and Douglas B. Anderson, Assistant Attorney General (argued), Office of the Attorney General, Bismarck, N.D., for respondent and appellant.
[¶ 1] The North Dakota Department of Transportation appeals from a Southeast Judicial District Court judgment reversing an administrative hearing officer's decision to suspend Aaron Johnson's driving privileges for driving under the influence of alcohol. The Department argues the administrative hearing officer reasonably found the provision for a twenty-minute waiting period in the approved method for conducting the Intoxilyzer test was followed. The approved method requires the operator to ascertain the subject has had nothing to eat, drink, or smoke within the twenty minutes preceding the collection of the breath sample. We reverse the district court's decision, concluding the hearing officer reasonably found the provision for a twenty-minute waiting period in the approved method for conducting the Intoxilyzer test was followed.
[¶ 2] On May 7, 2003, Jamestown Police Officer Ronald Dietz stopped Johnson for a traffic violation. After Johnson failed field sobriety tests and the S-D2 test, he was arrested for driving under the influence of alcohol. After arresting Johnson, the officer transported him to the Stutsman County Corrections Center, where he administered an Intoxilyzer test. The test results showed Johnson had a blood alcohol level of .16 percent. The Department notified Johnson of its intent to suspend his driving privileges, and he requested a hearing.
[¶ 3] At the June 2, 2003, administrative hearing, the officer testified that he was familiar with the approved method for administering the S-D2 test and that he followed the approved method. He testified that before administering the test, he advised Johnson of the North Dakota implied-consent law. He testified he checked Johnson's mouth and established a five-minute waiting period. The officer explained that after the S-D2 test, he arrested Johnson, handcuffed his hands behind his back, placed him in the back of the police car, and transported him to the corrections center. The officer testified that Johnson's arrest was at 1:32 a.m. and that it took about one or two minutes to get to the corrections center. [¶ 4] The officer testified that once they arrived at the corrections center, he notified Johnson of the implied-consent law, checked the inside of his mouth to make sure there was nothing in there, and observed him for twenty minutes before administering the Intoxilyzer test. He testified the first breath sample was taken at 1:51 a.m. The officer testified he followed the approved method in administering the Intoxilyzer test. He explained he ascertained the twenty-minute waiting period by noting the time at which he read Johnson the implied-consent law. He stated he administered the test twenty minutes from that time. The Intoxilyzer test record and checklist also indicate that the twenty-minute waiting period was ascertained before the officer administered the test.
[¶ 5] At the hearing, Johnson objected to the admission of the Intoxilyzer test results, contending the officer did not comply with the twenty-minute waiting period provided for in the method approved by the State Toxicologist for conducting an Intoxilyzer test. The hearing officer found the twenty-minute waiting period had been observed by the time the officer administered the Intoxilyzer test. He suspended Johnson's driving privileges for ninety-one days.
[¶ 6] Johnson appealed the hearing officer's decision to the district court. The district court reversed the hearing officer's decision, concluding there was not a twenty-minute wait prior to the administration of the Intoxilyzer test. In its memorandum opinion, the district court explained the waiting period for the Intoxilyzer test does not begin until after the S-D2 test has been administered. The court explained that because each test has its own approved method with different waiting periods and different purposes, the waiting period from the S-D2 test cannot be tacked on to the waiting period for the Intoxilyzer test. The Department appealed the district court's decision.
[¶ 7] Johnson timely requested a hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. The Department filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-32-49.
[¶ 8] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs review of an administrative suspension of a driver's license. Hanson v. Director, N.D. Department of Transportation, 2003 ND 175, ¶ 7, 671 N.W.2d 780. "This Court exercises a limited review in appeals involving drivers' license suspensions or revocations." Henderson v. Director, N.D. Department of Transportation, 2002 ND 44, ¶ 6, 640 N.W.2d 714. On appeal, we review the administrative agency's decision and give deference to the administrative agency's findings, deferring to the hearing officer's opportunity to judge the credibility of witnesses. Hanson, at ¶ 7. We will not make independent findings or substitute our judgment for that of the agency. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161. We instead determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. Id.; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). If the district court's analysis is sound, however, it is entitled to respect. Hanson, at ¶ 7.
[¶ 9] We 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.
[¶ 10] The Department argues the hearing officer reasonably found the twenty-minute waiting period of the approved method for administering an Intoxilyzer test had been followed.
[¶ 11] The admissibility of an Intoxilyzer test result is governed by N.D.C.C. § 39-20-07(5). Buchholz v. N.D. Department of Transportation, 2002 ND 23, ¶ 7, 639 N.W.2d 490. This statute provides:
The 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 state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist. The state toxicologist is authorized to approve satisfactory devices and methods of chemical analysis and determine the qualifications of individuals to conduct such analysis, and shall issue a...
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