Moser v. North Dakota State Highway Com'r, 10881

• Decision Date: 10 June 1985
• Docket Number: No. 10881,10881
• Citation: 369 N.W.2d 650
• Parties: Terry MOSER, Petitioner and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 650

369 N.W.2d 650

Terry MOSER, Petitioner and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellee.

Civ. No. 10881.

Supreme Court of North Dakota.

June 10, 1985.

Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for petitioner and appellant; argued by James A. Wright; appearance by Cecelia Ann Wickenheiser, Jamestown.

Robert E. Lane, Asst. Atty. Gen., Bismarck, for respondent and appellee.

LEVINE, Justice.

Terry Moser (Moser) appeals from a district court judgment affirming a decision of the North Dakota State Highway Commissioner (Commissioner) to suspend Moser's driver's license pursuant to North Dakota Century Code Ch. 39-20. We reverse.

Moser was involved in a one-vehicle rollover accident on September 14, 1984. He was arrested for operating a motor vehicle in violation of NDCC Sec. 39-08-01 ¹ or equivalent ordinance. Moser was administered a Breathalyzer test, which indicated a blood alcohol concentration of 0.19 percent by weight. The arresting officer took possession of Moser's driver's license pursuant to NDCC Sec. 39-20-03.1. ² Moser requested and received an administrative hearing pursuant to NDCC Sec. 39-20-05. ³

At the conclusion of the administrative hearing, the Commissioner's hearing officer made the following findings of fact, conclusions of law, and decision:

"Findings of fact are that Officer Nustad was stopped by a truck driver who reported "The conclusions of law, I find Officer Nustad had the grounds to believe Mr. Moser violated Section 39-08-01 of the North Dakota Century Code. I find Mr. Moser was arrested. I find Mr. Moser was tested in accordance with 39-20-01, and 39-20-02 of the North Dakota Century Code. I find Mr. Moser was fairly tested and the results showed he [had] more than .10 percent blood-alcohol concentration by weight."

he saw a pickup vehicle rolled over in a ditch, Highway 281 North. Officer Nustad went to the location. The driver was not at the scene when he arrived. Approximately 10 minutes later Mr. Moser arrived and stated he had gone for help and he had driven the vehicle. He lost control and rolled over. Officer Nustad asked the driver if he had been drinking; the driver stated that he had. Officer Nustad placed Mr. Moser under arrest for DUI. He gave the ALERT test which he failed. Mr. Moser was transported to the Jamestown Police Station. He was offered a chemical test of his breath which he submitted to. The test results showed he had .19 percent blood-alcohol concentration by weight.

The hearing officer suspended Moser's driving privileges for 90 days, pursuant to NDCC Sec. 39-20-04.1.

Moser appealed to the district court, which affirmed the administrative hearing officer's decision. Moser appealed the district court judgment and he has raised the following issues:

"I.

"Did the arresting officer have reasonable grounds to believe that Moser had been driving under the influence of intoxicating liquor?

II.

"Was Moser's breathalyzer test 'fairly administered' according to the approved method promulgated by the North Dakota State Toxicologist?

"III.

"Was Moser tested within two hours after driving as required by Section 39-20-03.1 of the North Dakota Century Code?"

An appeal from a district court judgment involving a license suspension under NDCC Sec. 39-20-04.1 is governed by the Administrative Agencies Practice Act, NDCC Chapter 28-32, and we, therefore, look to the record compiled before the administrative agency, rather than the findings of the district court. Dodds v. North Dakota State Highway Commissioner, 354 N.W.2d 165 (N.D.1984).

"Our role in reviewing the factual basis of an administrative decision is limited to a consideration of the following questions: '(1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law?' Asbridge, supra. [ Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739 (N.D.1980).] This Court also considers whether the decision violates constitutional rights or is not in accordance with the law. See, Sec. 28-32-19, N.D.C.C. We exercise restraint in reviewing the findings of an administrative agency; we do not substitute our judgment for that of the agency. [Citation omitted]." Dodds, supra, 354 N.W.2d at 168-169.

I.

Moser argues that the arresting officer did not have reasonable grounds to believe that Moser had been driving in violation of NDCC Sec. 39-08-01. See NDCC Sec. 39-20-05. We disagree. The term "reasonable grounds" is synonymous with the term "probable cause." Witte v. Hjelle, 234 N.W.2d 16 (N.D.1975). We held, in Syllabus p 3, in Witte v. Hjelle, supra:

"Probable cause exists when the facts and circumstances within a police officer's knowledge and of which he had reasonably trustworthy information are The arresting officer was informed by a truck driver that there was a "pickup rolled over in a ditch" on Highway 281 North in Jamestown. No one was at the accident scene when the officer arrived. When Moser arrived at the accident scene approximately ten minutes later with two other persons, he stated that he was the driver of the vehicle and admitted that he had been drinking beer and lost control of the vehicle. This evidence, coupled with the lack of any suggestion of another cause of the accident, is "sufficient to warrant a man of reasonable caution in believing" that the offense of driving in violation of NDCC Sec. 39-08-01 had been committed. We also note that in the Officer's Statement of Probable Cause contained in an exhibit received without objection during the administrative hearing, the arresting officer stated that he could smell alcohol on Moser's breath and Moser's eyes were bloodshot. The arresting officer had reasonable grounds to believe that Moser had been driving a vehicle in violation of NDCC Sec. 39-08-01.

sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed."

II.

The Breathalyzer machine involved had a "zero line" and a "start line" at which the various tests involved in a Breathalyzer test are to be started. The machine has a scale for indicating a percentage of blood alcohol. The scale begins with 0.00 percent on the left with gradations to 0.40 on the right side.

One of the tests involved in a Breathalyzer test is a "standard test." The Breathalyzer Operational Check list and the Approved Method To Conduct Breath Test With Breathalyzer filed by the state toxicologist with the clerk of the district court pursuant to NDCC Sec. 39-20-07, indicate that the standard test is to be begun on the "zero line." The Approved Method states that "[a] proper result from the standard test indicates that the Breathalyzer is operating properly." The Standard Solution Analytical Report issued by the state toxicologist on the standard ethyl alcohol solution used in the test involved here states:

"A proper result for the standard test using this solution should be in the range of 0.100% to 0.119%. Such readings are usually reported on Breathalyzer Operational Check List (Form 106) as 0.10% if the reading is between 0.100% and 0.109%, and as 0.11% if the reading is between 0.110 and 0.119%."

It is undisputed that the officer administering the Breathalyzer test to Moser began the standard test "a little bit to the left of the zero line" and the result of the standard test was a reading a little bit to the left of the 0.12% mark.

Subsection 5 of NDCC Sec. 39-20-07 provides, in part:

"The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist...."

We said in State v. Schneider, 270 N.W.2d 787, 791 (N.D.1978), that "[f]air administration of the breathalyzer test requires, at the minimum, a showing that the test was 'performed according to the methods and/or with devices approved by the state toxicologist....' " The foundational requirements needed to show that a Breathalyzer test was "fairly administered" so as to render the results admissible, may be met either through testimony of the state toxicologist or through the introduction of certified copies of approved methods and techniques filed by the state toxicologist with the clerk of the district court pursuant to NDCC Sec. 39-20-07. State v. Schneider, supra. Absent testimony by the state toxicologist, the foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court. Thus, reliability and accuracy of the results are The officer's failure to start the standard test at zero violated the approved procedures on file with the clerk of the district court. Therefore, the minimum foundational requirement to show fair administration of the Breathalyzer test and admissibility of the Breathalyzer test result is absent because the test clearly was not performed according to methods approved by the state toxicologist. State v. Schneider, supra; State v. Salhus, 220 N.W.2d 852 (N.D.1974); NDCC Sec. 39-20-07(5). Notwithstanding their improper foundation, the Breathalyzer test results were received into evidence over objection. We hold that the results of the Breathalyzer test were improperly admitted into evidence because of the lack of a full showing that the test was administered as required by NDCC Sec. 39-20-07. State v. Puhr, 316 N.W.2d 75 (N.D.1982). While the foundational defect might have been cured through testimony of the state toxicologist, whose testimony at trial takes precedence over the approved methods filed with the district courts, State v. Puhr, supra; State v. Guthmiller, 350 N.W.2d 600 (N.D.1984), no such...