Mead v. North Dakota Dept. of Transp., 980054CA

• Decision Date: 07 July 1998
• Docket Number: No. 980054CA,980054CA
• Citation: 581 N.W.2d 145
• Parties: 1998 ND APP 2 Troy Donovan MEAD, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant. Civil
• Court: North Dakota Court of Appeals

Page 145

581 N.W.2d 145

1998 ND APP 2

Troy Donovan MEAD, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

Civil No. 980054CA.

Court of Appeals of North Dakota.

July 7, 1998.

William A. Mackenzie, of Mackenzie & Reisnour, Jamestown, for petitioner and appellee. Submitted on brief.

Andrew Moraghan (argued), Assistant Attorney General, Bismarck, for respondent and appellant.

PER CURIAM.

¶1 The Department of Transportation appealed from a district court judgment reversing an administrative suspension of Troy Donovan Mead's license for 91 days for driving while under the influence. We reverse the judgment and remand with instructions to reinstate the Department's administrative suspension of Mead's license.

¶2 At about 2:30 a.m. on August 28, 1997, a clerk at a convenience store in Jamestown reported an intoxicated man had left the store driving west on 5th Street in a dark Mazda pickup with a topper and license plate number DVD 941. A police dispatcher relayed the information to law enforcement officers on duty. Jamestown police officer Dana Middleton was on duty and saw a small pickup with a topper on 5th Street. By the time Middleton verified the license plate number on the pickup, it was proceeding out of Jamestown on the "stockyard road." Middleton did not know if he was within one and one-half miles of the Jamestown city limits when he observed the pickup cross the center line.

¶3 Middleton informed the dispatcher he had seen the pickup cross the center line and requested permission to stop the pickup. The dispatcher contacted Stutsman County Deputy Sheriff Chad Kaiser, and Kaiser directed Middleton to stop the pickup. Middleton stopped the pickup outside the Jamestown city limits and identified Mead as the driver. Middleton detected a strong odor of alcoholic beverages from the pickup and observed that Mead's speech was slow and his eyes were bloodshot. Middleton also noticed Mead's eyes "kind of squinted" and he had difficulty maintaining his balance as he stepped out of the pickup. Kaiser arrived at the scene sometime after the stop, but did not participate in the investigation. Instead, Middleton administered field sobriety tests and another officer administered an ALERT test to Mead. Mead failed those tests, and Middleton arrested him for driving under the influence of alcohol. A subsequent blood-alcohol test revealed Mead had an alcohol concentration of .19 percent.

¶4 The Department issued Mead a temporary operator's permit under N.D.C.C. Ch. 39-20, and he requested an administrative hearing regarding the suspension of his license. An administrative hearing officer suspended Mead's driving privileges for 91 days, concluding Kaiser had given Middleton authority to stop Mead's vehicle, Middleton had reasonable grounds to stop Mead's vehicle and arrest him for driving while under the influence, Mead was tested for blood-alcohol concentration in accordance with N.D.C.C. § 39-08-01, and the test results showed Mead had a blood-alcohol concentration of at least .10 percent.

¶5 Mead moved for reconsideration, contending Kaiser did not authorize Middleton to go beyond the initial stop and actually arrest Mead. The hearing officer denied Mead's motion, concluding the record sufficiently reflected Kaiser requested Middleton's assistance in apprehending a possible driver under the influence.

¶6 The district court reversed Mead's administrative suspension, concluding:

"The remaining issue is whether Middleton had the authority to take over the jurisdiction of Stutsman County and arrest Mead and require him to appear in Municipal Court for criminal charges. The [e]rratic driving occurred outside of city limits. The investigation of suspected DUI activity occurred outside of city limits. A Stutsman County Deputy Sheriff was present for an investigation and arrest, but did neither activity. Middleton's actions of investigation and arrest went beyond aid and assistance allowed by North Dakota Century Code 44-08-20(3). Middleton did not have the authority to arrest Mead."

The Department appealed.

¶7 An appeal from an administrative hearing officer's decision involving a license suspension is governed by the Administrative Agencies Practice Act, N.D.C.C. Ch. 28-32. Erickson v. Director, N.D. Dep't of Transp., 507 N.W.2d 537 (N.D.1993). On appeal, the decision of the agency must be affirmed if: (1) the findings of fact are supported by a preponderance of evidence; (2) the conclusions of law are sustained by the findings of fact; (3) the decision is supported by the conclusions of law; and (4) the decision is in accordance with the law. Wolf v. North Dakota Dep't of Transp., 523 N.W.2d 545 (N.D.1994).

¶8 On appeal the Department contends the administrative suspension of Mead's driving privileges should be summarily affirmed because his specifications of error failed to allege any error with particularity as required by Vetter v. North Dakota Workers Comp. Bur., 554 N.W.2d 451 (N.D.1996). We need not decide whether Mead's specifications of error were sufficient under Vetter, however, because we conclude Middleton had authority to arrest Mead.

¶9 The Department argues Middleton had authority...