Painte v. Director

Decision Date19 June 2013
Docket NumberNo. 20120316.,20120316.
Citation2013 ND 95,832 N.W.2d 319
PartiesDebbie Ann PAINTE, Appellee v. DIRECTOR, DEP'T OF TRANSPORTATION, Appellant.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Thomas M. Tuntland, Mandan, ND, for appellee.

Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellant.

CROTHERS, Justice.

[¶ 1] The North Dakota Department of Transportation appealed from a judgment reversing a hearing officer's decision suspending Debbie Ann Painte's driving privileges for 180 days. We conclude the district court erred in deciding the hearing officer made insufficient findings of fact and conclusions of law to establish the police officer had reasonable grounds to believe Painte was in actual physical control of a vehicle. We also conclude the Department laid a proper foundation for the admission of Painte's chemical test for intoxication. Therefore, we reverse the district court's judgment and reinstate the hearing officer's decision suspending Painte's driving privileges.

I

[¶ 2] In March 2012, a Mandan police officer arrested Painte for the offense of being in actual physical control of a vehicle while under the influence of intoxicating liquor. At approximately 2:49 a.m., on March 8, 2012, the officer responded to a property owner's report that a vehicle was parked in her parking area for quite a while and that the vehicle was running with somebody inside of it. After arriving at the location, the officer observed a parked vehicle with the engine running and a female inside.

[¶ 3] The police officer testified at the administrative hearing that the occupant, later identified as Painte, was not conscious and was slumped over in the seat with her eyes closed. The officer knocked on the window to get Painte's attention. The officer observed a pool of vomit on the ground outside the vehicle and Painte was bleeding on her nose. The officer also detected the odor of alcohol. The officer testified Painte was very difficult to understand, was having a hard time following instructions and had very red and bloodshot eyes.

[¶ 4] The officer testified Painte appeared to be intoxicated and got out of the vehicle to perform field sobriety tests. Painte failed the horizontal gaze nystagmus test and was unable to complete the walk and turn test and the S–D5 on-site screening test. The officer arrested Painte for being in actual physical control of a vehicle and transported her to Morton County jail for a blood draw. The results of the blood test established Painte had a blood alcohol concentration of .217 percent by weight.

[¶ 5] Painte requested an administrative hearing. After the hearing, the hearing officer issued findings of fact, conclusions of law and a decision suspending Painte's driving privileges for 180 days. Painte appealed to the district court, arguing the hearing officer erred in concluding the chemical test was fairly administered and in concluding probable cause existed to arrest her for actual physical control of a motor vehicle. The district court reversed the hearing officer's decision and reinstated Painte's driving privileges.

II

[¶ 6] Our review of an administrative agency decision to suspend a person's driving privileges is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32. Berger v. North Dakota Dep't of Transp., 2011 ND 55, ¶ 5, 795 N.W.2d 707. On appeal from the district court, we review the agency's decision. Berger, at ¶ 5;Masset v. Dir., North Dakota Dep't of Transp., 2010 ND 211, ¶ 6, 790 N.W.2d 481. Courts exercise limited review in appeals from administrative agency decisions, and the agency's decision is accorded great deference.” Berger, at ¶ 5. We review an administrative agency decision under N.D.C.C. § 28–32–49 in the same manner as the district court under N.D.C.C. § 28–32–46. Berger, at ¶ 5. We must affirm the agency's decision 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.

[¶ 7] “In deciding whether an agency's findings of fact are supported by a preponderance of the evidence, our review is confined to the record before the agency and to determining ‘whether a reasoning mind reasonably could have determined the factual conclusions were proven by the weight of the evidence.’ Hawes v. N.D. Dep't of Transp., 2007 ND 177, ¶ 14, 741 N.W.2d 202 (quoting Kraft v. N.D. State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572). We defer to the agency's ruling by not making independent findings of fact or by substituting our own judgment for the agency's, but ‘the ultimate conclusion of whether the facts meet the legal standard, rising to the level of probable cause, is a question of law, fully reviewable on appeal.’ Hawes, at ¶ 14 (quoting Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161).

III

[¶ 8] The Department argues the hearing officer's findings of fact support the conclusion of law that the police officer had reasonable grounds to believe Painte was in actual physical control of the vehicle in violation of N.D.C.C. § 39–08–01.

[¶ 9] Under N.D.C.C. § 39–08–01(1)(a), a person is prohibited from being “in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if ... [t]hat person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after ... being in actual physical control of a vehicle.” “The essential elements of actual physical control are: (1) the defendant is in actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has a right of access; and (2) the defendant was under the influence of intoxicating liquor, drugs or other substances.” Hawes, 2007 ND 177, ¶ 5, 741 N.W.2d 202.

[¶ 10] “The primary factor in evaluating actual physical control is whether the accused had the ability to manipulate the controls of the vehicle.” Vanlishout v. North Dakota Dep't of Transp., 2011 ND 138, ¶ 16, 799 N.W.2d 397 (citing Rist v. North Dakota Dep't of Transp., 2003 ND 113, ¶ 14, 665 N.W.2d 45).

“Our case law reflects that ‘actual physical control’ does not mean the defendant can drive the car at the instant the officer sees him. Instead, the ability to control and operate the vehicle is subject to broader interpretation, and this is a question of fact properly left to the agency to decide. See Salvaggio v. North Dakota Dep't of Transp., 477 N.W.2d 195, 198 (N.D.1991). We have upheld numerous convictions in which the defendant was not able to instantaneously operate the vehicle, but was still deemed to have had actual physical control because the temporary impediment could have been removed and the defendant could again have attempted to drive. See, e.g., Hawes, 2007 ND 177, 741 N.W.2d 202 (defendant's car out of fuel); City of Fargo v. Novotny, 1997 ND 73, 562 N.W.2d 95 (defendant asleep in vehicle with engine not running); Salvaggio, 477 N.W.2d 195 (N.D.1991) (defendant outside of stuck vehicle attempting to place chains on tire); City of Fargo v. Theusch, 462 N.W.2d 162 (N.D.1990) (defendant asleep in vehicle with ignition key in his coat pocket); State v. Ghylin, 250 N.W.2d 252 (N.D.1977) (defendant outside of vehicle stuck in the ditch).”

Vanlishout, 2011 ND 138, ¶ 17, 799 N.W.2d 397.

[¶ 11] In reversing the hearing officer's decision, the district court recognized the broad view of what constitutes “actual physical control” and there was evidence in the record from which the hearing officer could reasonably have found Painte was able to “manipulate the controls” of the vehicle. However, the district court reversed the hearing officer's decision because no specific finding of fact or conclusion of law established that Painte was able to “manipulate the [vehicle's] controls” and the hearing officer failed to articulate “any other nexus between her findings of fact and her conclusions of law” or “to clearly explain how the findings of fact lead to the conclusions of law.”

[¶ 12] Although the hearing officer did not specifically find Painte had the “ability to manipulate” the vehicle's controls, the Department argues the findings are stated with sufficient specificity to understand the hearing officer's decision. The Departmentasserts Painte's ability to control and operate the vehicle may be reasonably inferred from the underlying evidentiary facts without the need to express “terms of art.” The Department contends a finding of the ultimate fact Painte had the ability to control and operate her vehicle also may be implied from the hearing officer's conclusion that the officer had reasonable grounds to believe Painte was in actual physical control of the vehicle in violation of N.D.C.C. § 39–08–01.

[¶ 13] Despite Painte's assertion no evidence proved she was exercising “real control” over the vehicle or was in a position to manipulate the vehicle's controls, the hearing officer concluded the police officer had reasonable grounds to believe Painte was in actual physical control. In reaching this conclusion, the hearing officer found:

“Mandan Police Officer April Jose was called to check on a...

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