Mees v. N.D. Dep't of Transp.

• Decision Date: 28 February 2013
• Docket Number: No. 20120348.,20120348.
• Citation: 2013 ND 36,827 N.W.2d 345
• Parties: Timothy Allen MEES, Petitioner and Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
• Court: North Dakota Supreme Court

827 N.W.2d 345

2013 ND 36

Timothy Allen MEES, Petitioner and Appellee

v.NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

No. 20120348.

Supreme Court of North Dakota.

Feb. 28, 2013.

Tyrone J. Turner, Bismarck, N.D., for petitioner and appellee.

Michael T. Pitcher, Office of Attorney General, Bismarck, N.D., for respondent and appellant.

MARING, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from the district court's judgment reversing the administrative hearing officer's decision to suspend Timothy Mees's driving privileges for ninety-one days for driving under the influence of alcohol. We conclude a reasoning mind reasonably could have concluded the hearing officer's finding that the officer who administered the Intoxilyzer ascertained that Mees did not have anything to eat, drink, or smoke for twenty minutes prior to the Intoxilyzer test is supported by the weight of the evidence on the entire record. Therefore, we reverse the district court's judgment and reinstate the hearing officer's decision to suspend Mees's driving privileges.

I

[¶ 2] On January 29, 2012, Officer Mark Otterness arrested Mees for driving under the influence and transported Mees to the Bismarck Police Department. On the Intoxilyzer Test Record and Checklist, Officer Mitchell Wardzinski certified he followed the approved method of collection and the twenty-minute wait period was ascertained. The Intoxilyzer test revealed Mees's alcohol concentration was .125 percent. Officer Otterness issued a report and notice to Mees following the completion of the Intoxilyzer test.

[¶ 3] Mees requested and received an administrative hearing. Officer Otterness testified at the administrative hearing, but Officer Wardzinski did not testify. Officer Otterness testified that Mees provided an on-site breath sample. Officer Otterness testified that prior to his administration of an on-site breath test, another officer at the scene had Mees clear his mouth of chewing tobacco, and Officer Otterness waited an additional three minutes before administering the on-site breath test.

[¶ 4] Officer Otterness also testified that after the result of the on-site screening test came back with an alcohol concentration of .125 percent, he arrested Mees for driving under the influence of an alcoholic beverage, placed him in handcuffs, and placed him in the backseat of his patrol car. Officer Otterness arrested Mees at 1:03 a.m. He then transported Mees to the police department arriving at 1:08 a.m. or 1:10 a.m. He testified that he took Mees directly to the booking room and, while filling out paperwork, Mees sat directly in front of him. He also testified that, while in the booking room, Mees did not place anything in his mouth. Officer Otterness then testified that he turned Mees over to Officer Wardzinski who administered the Intoxilyzer test. Officer Otterness testified that Officer Wardzinski commenced administering the Intoxilyzer test at 1:25 a.m. The result of the Intoxilyzer test was .125 percent alcohol concentration.

[¶ 5] At the hearing, the Intoxilyzer Test Record and Checklist was offered and received into evidence over Mees's objection. Mees objected to the admission of the Intoxilyzer Test Record and Checklist, arguing that Officer Wardzinski could not have ascertained whether Mees had anything to eat, drink, or smoke for twenty minutes prior to the administration of the test based on the time Mees arrived at the police department.

[¶ 6] At the conclusion of the hearing, the hearing officer issued her findings of fact, conclusions of law, and decision to suspend Mees's driving privileges for ninety-one days. In reaching this decision, the hearing officer found the “Intoxilyzer test[ ] was done in accordance with the [S]tate [T]oxicologist's approved method.”

[¶ 7] Mees appealed to the district court. The district court reversed the hearing officer's decision, concluding Officer Wardzinski could not have ascertained whether Mees had anything to eat, drink, or smoke for twenty minutes prior to the administration of the Intoxilyzer test. Therefore, the approved method was not followed. The Department appealed the district court's decision.

[¶ 8] On appeal, the Department argues the district court erred in reversing the hearing officer's suspension of Mees's driving privileges. The Department argues the Intoxilyzer Test Record and Checklist was prima facie evidence that the test was done in accordance with the State Toxicologist's approved method and Mees failed to rebut this presumption.

II

[¶ 9] We review a decision to suspend a person's driving privileges underN.D.C.C. ch. 28–32, the Administrative Agencies Practice Act. Thorsrud v. N.D. Dep't of Transp., 2012 ND 136, ¶ 7, 819 N.W.2d 483. “The review is limited to the record before the administrative agency.” Buchholtz v. N.D. Dep't of Transp., 2008 ND 53, ¶ 9, 746 N.W.2d 181 [hereinafter “Buchholtz I ”]. We will not, however, make independent findings or substitute our judgment. Id. We will only determine “whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record.” Id. An administrative agency's decision must be affirmed 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. “Questions of law are fully reviewable on appeal.” Buchholtz I, at ¶ 9.

III

[¶ 10] Chapter 39–20, N.D.C.C., governs the admissibility of an Intoxilyzer test result. Buchholtz I, 2008 ND 53, ¶ 10, 746 N.W.2d 181 (citing Johnson v. N.D. Dep't of Transp., 2004 ND 59, ¶ 11, 676 N.W.2d 807). Under N.D.C.C. § 39–20–07(5), the results of a chemical test must be received into evidence if shown that the test has been fairly administered:

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 director of the state crime laboratory or the director's designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director's designee....

[¶ 11] Proof of fair administration may be established through the introduction of the Intoxilyzer Test Record and Checklist:

At a hearing under this section, the regularly kept records of the director may be introduced. Those records establish prima facie their contents without further foundation. For purposes of this chapter, the following are deemed regularly kept records of the director: ... a certified copy of the checklist and test records received by the director from a certified breath test operator.

N.D.C.C. § 39–20–05(4); see also Thorsrud, 2012 ND 136, ¶ 10, 819 N.W.2d 483 (holding that “once the Intoxilyzer Test Record and Checklist was admitted into evidence, the Department ‘established prima facie its contents without further foundation,’ ” thereby establishing fair administration); Salter v. Hjelle, 415 N.W.2d 801, 803 (N.D.1987) (recognizing that “[u]nder [N.D.C.C.] § 39–20–07, certified copies of the operational checklist and listings of approved chemical testing devices and certified operators are cumulatively sufficient to prove fair administration”).

[¶ 12] The Intoxilyzer Test Record and Checklist is, therefore, presumed to show fair administration of the approved method until the defendant shows that “ ‘the evidence as a whole clearly negates the presumed fact.’ ” Thorsrud, at ¶ 10 (quoting State v. Zimmerman, 516 N.W.2d 638, 642 (N.D.1994)). The defendant “ ‘must do more than raise the mere possibility of error.’ ” Thorsrud, at ¶ 10 (quoting Berger v. State Highway Comm'r, 394 N.W.2d 678, 688 (N.D.1986)). A defendant may either rebut the presumption of fair administration by proving a lack...