McNamara v. Director of North Dakota Dept. of Transp., 920293

• Citation: 500 N.W.2d 585
• Decision Date: 26 May 1993
• Docket Number: No. 920293,920293
• Parties: Michael J. McNAMARA, Petitioner and Appellant, v. DIRECTOR OF NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 585

500 N.W.2d 585

Michael J. McNAMARA, Petitioner and Appellant, v. DIRECTOR OF NORTH DAKOTA DEPARTMENT OF TRANSPORTATION,

Respondent and Appellee.

Civ. No. 920293.

Supreme Court of North Dakota.

May 26, 1993.

Vince H. Ficek (argued), Reichert, Buresh, Herauf & Ficek, PC, Dickinson, for petitioner and appellant.

Michele G. Johnson (argued), Atty. General's Office, Bismarck, for respondent and appellee.

NEUMANN, Justice.

Michael J. McNamara appeals from a judgment entered by the District Court for Stark County affirming the administrative suspension of his driving privileges under the provisions of Section 39-20-05(2), N.D.C.C. We affirm.

McNamara was arrested for driving under the influence of alcohol, in violation of Section 39-08-01, N.D.C.C., in the early morning hours of March 29, 1992. He promptly requested an administrative hearing prior to the suspension of his driver's license by the Director of Transportation (DOT). After the hearing, the administrative hearing officer suspended McNamara's license. McNamara appealed that decision to the District Court for Stark County, which affirmed the DOT's decision. This timely appeal followed, raising five issues: (1) whether the arresting officer had a reasonable and articulable suspicion to stop McNamara, and probable cause to place McNamara under arrest; (2) whether there was sufficient evidence presented at the administrative hearing to determine if the blood test was fairly administered; (3) whether McNamara received a fair and impartial hearing at the administrative level; (4) whether McNamara should have been advised of his right to counsel and his right to an independent test before being subjected to a blood test; and (5) whether the administrative hearing officer violated Section 39-20-05(5), N.D.C.C., by rendering his decision the day after the administrative hearing.

Our review of McNamara's appeal from the district court decision is governed by the Administrative Agencies Practice Act. Chapter 28-32, N.D.C.C. In such an appeal, we review the record of the administrative agency rather than the record of the district court. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 595 (N.D.1992). Our review is limited to whether: "(1) the findings of fact are supported by a preponderance of the evidence, (2) the conclusions of law are sustained by the findings of fact, and (3) the decision is supported by the conclusions of law." Ehrlich v. Backes, 477 N.W.2d 211, 213 (N.D.1991). When reviewing factual determinations made by the agency, "[w]e do not make independent findings or substitute our judgment for that of the agency." Boyce v. Backes, 488 N.W.2d 45, 47 (N.D.1992). Instead, "we consider whether the agency reasonably reached its factual determinations from the greater weight of all the evidence." Id.

I. THE STOP AND ARREST

On appeal, McNamara argues that the arresting officer, Sergeant Nelson, did not have "reasonable grounds" to stop him, and that after the stop, Nelson did not have probable cause to arrest him for driving under the influence. At the DOT hearing, Nelson testified that he observed McNamara driving a substantial distance in the middle turn-only lane as McNamara approached him on a three-lane road (the turn-only lane being the middle lane). Nelson also testified that he clocked McNamara on radar travelling seven miles over the speed limit. Nelson stated that these were the two reasons for the stop. McNamara tried to refute that evidence at the hearing by offering into evidence a videotape taken from Nelson's patrol car during the incident, and also by supplying the hearing officer with a videotape he took of the same road in the same conditions shortly after his arrest. It is McNamara's contention that the road on which he was travelling was so poorly marked at the time of his arrest that neither he nor Nelson could have observed the white arrows and other markings of the turn-only lane. McNamara also testified that he had his radar detector on immediately before Nelson stopped him, and that it did not detect radar when approaching Nelson, so Nelson could not have been tracking his speed with radar.

We have viewed both videotapes. At the very beginning of the tape taken from Nelson's patrol car, Nelson is turning around on the road to pursue McNamara. While Nelson is making his U-turn, a white arrow indicating a turn-only lane is clearly discernible in the middle of the road. Following Nelson's U-turn, the road expands into a four-lane road. Thus, the absence of markings on the three-lane road is no longer possible to review. More importantly, the tape offered by McNamara discloses at least six white turn arrows in a middle turn-only lane before the road develops into a four-lane road. Thus, it appears that there was evidence to support the administrative hearing officer's conclusion that Nelson observed McNamara driving in the middle turn-only lane.

Concerning the speed of McNamara's vehicle, the hearing officer was presented with conflicting testimony from McNamara and Nelson. Despite McNamara's constant insistence on appeal that Nelson did not mention speed as one of the reasons for the stop, we find various references to speed in Nelson's testimony. In fact, at one point Nelson unequivocally testified that speed was one of the two reasons for stopping McNamara. The hearing officer obviously found Nelson to be more credible, and chose to believe Nelson over McNamara.

As mentioned previously, this Court will not substitute its judgment for the agency's, nor will we make independent findings. While McNamara is correct in his argument that there was evidence introduced at the DOT hearing which conflicts with the hearing officer's findings of fact, we must point out that there was also evidence supporting the hearing officer's findings. Thus, as the findings are not against the greater weight of the evidence, we will not disturb them on appeal.

McNamara repeatedly refers to the standard for a stop as "reasonable grounds." However, " '[r]easonable grounds' to believe an offense has been committed is synonymous with 'probable cause.' " Salvaggio v. North Dakota Dep't of Transp., 477 N.W.2d 195, 197 (N.D.1991) (quoting Wolf v. North Dakota Highway Comm'r, 458 N.W.2d 327, 329 (N.D.1990)). This Court has previously announced the standard police must satisfy to stop a vehicle, and it is termed "reasonable and articulable suspicion," not probable cause.

"Police may briefly stop an auto to investigate a reasonable suspicion that a driver may be violating a law, without waiting for an actual violation or an actual injury to someone. An officer need only have enough information for an articulable and reasonable suspicion that the driver has or may be violating the law."

State v. Nelson, 488 N.W.2d 600, 602 (N.D.1992) (citations omitted). Reasonable and articulable suspicion is not as stringent a standard as probable cause. Thus, McNamara's terminology is incorrect. Nelson only needed to possess a reasonable and articulable suspicion to stop McNamara, and the speeding and driving in a turn-only lane were sufficient to raise such a suspicion.

McNamara also asserts that Nelson lacked probable cause after the stop to arrest him for driving under the influence. We disagree. Probable cause has been defined as follows:

"In determining whether or not there is probable cause to make an arrest, an officer need not possess knowledge of facts sufficient to establish guilt. State v. Goeman, 431 N.W.2d 290 (N.D.1988). Probable cause exists when the facts and circumstances within a police officer's knowledge and of which he had trustworthy information are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed. State v. Prigge, 437 N.W.2d 520 (N.D.1989)."

State v. Woytassek, 491 N.W.2d 709, 711 (N.D.1992).

At the DOT hearing, Nelson testified that after he approached McNamara's vehicle, he detected the odor of alcohol. After requesting McNamara to enter the patrol car, Nelson determined the source of the odor to be McNamara. Nelson also testified that McNamara admitted to Nelson that he had been drinking. Nelson said that McNamara failed the gaze nystagmus test, although it was close. McNamara did recite his alphabet correctly, but he made various mistakes when counting backward from 86 to 70. McNamara was notably unsteady during the walk-and-turn test, breaking his feet apart once, raising his arms to maintain his balance on occasion, and incorrectly turning after the first nine steps. Much of this conduct appeared on the video tape. Nelson then gave McNamara an Alco-Sensor test, which he failed. Nelson based his decision to arrest McNamara on these circumstances and the results of the sobriety tests. We conclude that the combination of the above factors gave Nelson probable cause to arrest McNamara for driving under the influence. State v. Prigge, 437 N.W.2d 520, 521-22 (N.D.1989) (an officer has probable cause to arrest a motorist for driving under the influence when, among other things, the motorist fails various field sobriety tests).

II. EVIDENCE OF A FAIR ADMINISTRATION OF THE BLOOD TEST

McNamara makes several assertions regarding the sufficiency and validity of the evidence introduced by the hearing officer to prove the results and fair administration of the blood test. First, McNamara argues that several of the exhibits introduced were not original documents or properly certified copies, and therefore should not have been admitted or considered by the hearing officer. We will begin with McNamara's contention that the test results should have been excluded from the evidence because the operational checklist ¹ was not certified by the clerk of the district court.

We answer this argument by referring McNamara to State v. Schwalk, 430 N.W.2d 317 (N.D.1988). Justice Levine, speaking for this Court, offered a complete and thorough explanation of the admissibility of...