Lapp v. Department of Transp., 20010040.

• Citation: 2001 ND 140,632 N.W.2d 419
• Decision Date: 25 July 2001
• Docket Number: No. 20010040.,20010040.
• Parties: Roger D. LAPP, Petitioner and Appellee, v. North Dakota DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
• Court: United States State Supreme Court of North Dakota

632 N.W.2d 419
2001 ND 140

Roger D. LAPP, Petitioner and Appellee,
v.
North Dakota DEPARTMENT OF TRANSPORTATION, Respondent and Appellant

No. 20010040.

Supreme Court of North Dakota.

July 25, 2001.

632 N.W.2d 420

Reid Alan Brady (argued) and Andrew Moraghan, Assistant Attorneys General, Bismarck, ND, for respondent and appellant

Chad R. McCabe of Vinje Law Firm, Bismarck, ND, for petitioner and appellee.

NEUMANN, Justice.

[¶ 1] The North Dakota Department of Transportation ("the department") appealed from a district court judgment reversing the administrative hearing officer's decision suspending Roger D. Lapp's driver's license for ninety-one days. We reverse the district court judgment and reinstate the hearing officer's suspension of Lapp's license.

632 N.W.2d 421

I

[¶ 2] On July 16, 2000, a security guard for Bismarck Mandan Security called the Bismarck Law Enforcement Center and reported an individual slumped over the steering wheel of his vehicle that was parked in a parking lot. At 4:47 a.m. a Bismarck police officer responded to a dispatch call to the parking lot. The security guard told the officer he saw Lapp slumped over the steering wheel of his idling pickup and tried unsuccessfully to communicate with Lapp by knocking on the pickup window. The police officer also saw Lapp slumped over the steering wheel of his pickup. The vehicle was still running, and the headlights were on. The officer knocked on the window. Lapp sat up and looked at the officer through the window. The officer noticed Lapp's eyes were glossy. It is disputed whether the officer opened the pickup door or whether Lapp and the officer opened the door at the same time, but after the door was opened, the officer asked Lapp if he had identification. Lapp showed the officer his driver's license. The officer asked Lapp whether he needed medical attention, and Lapp said he did not. The officer asked Lapp whether he had been drinking, and Lapp said he had consumed a few beers.

[¶ 3] The officer asked Lapp to get out of the pickup. Lapp agreed to take field sobriety tests. Lapp failed the one-leg stand and walk-and-turn tests. After the officer recited the implied consent advisory, Lapp submitted to an onsite screening test. The test estimated Lapp's blood-alcohol concentration was .16 percent. The officer arrested Lapp for being in actual physical control of a vehicle while under the influence of alcohol. An Intoxilyzer test given to Lapp at the police station showed Lapp's blood-alcohol content was .12 percent.

[¶ 4] Lapp requested an administrative hearing. The hearing officer concluded the police officer had reasonable grounds for approaching Lapp because Lapp was slumped over the steering wheel of his vehicle with the engine running. The hearing officer also concluded the police officer had probable cause to believe Lapp had been driving or was in actual physical control of a vehicle while under the influence of alcohol. The hearing officer suspended Lapp's driver's license for ninety-one days.

[¶ 5] Lapp appealed to the district court. The district court reversed the hearing officer's decision, finding the police officer opened the door of Lapp's vehicle without either a reasonable suspicion of criminal activity or a community caretaking function. The department appealed.

II

[¶ 6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative agency decision to suspend a driver's license. Wetzel v. N.D. Dep't of Transp., 2001 ND 35, ¶ 9, 622 N.W.2d 180. Our standard of review is the same standard applied by the district court. N.D.C.C. § 28-32-21. We review the record compiled by the agency and affirm the agency's decision unless:

1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practice Act were not complied with in the proceedings before the agency; 4) the agency's rules or procedures have not afforded the appellant a fair hearing; 5) the agency's findings are not supported by a preponderance of the evidence; or 6) the conclusions of law and the agency's decision are not supported by its findings of fact. N.D.C.C. § 28-32-19.

632 N.W.2d 422

Wetzel, 2001 ND 35, ¶ 9, 622 N.W.2d 180. We give great deference to administrative rulings. Id. at ¶ 9. When reviewing the findings of an administrative agency, we do not substitute our judgment for that of the agency, but instead determine whether a reasonable mind could have determined that the factual conclusions were proven by the weight of the evidence presented. Id. at ¶ 9

III

[¶ 7] The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution, guarantee "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

[¶ 8] We have explained, however, that not every law enforcement-citizen encounter is an investigative stop or a seizure deserving of Fourth Amendment protection. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996); see State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994) (discussing...