Peterson v. Director, North Dakota Dept. of Transp., 950043

• Decision Date: 29 August 1995
• Docket Number: No. 950043,950043
• Citation: 536 N.W.2d 367
• Parties: James Howard PETERSON, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 367

536 N.W.2d 367

James Howard PETERSON, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION,

Respondent and Appellant.

Civ. No. 950043.

Supreme Court of North Dakota.

Aug. 29, 1995.

No brief filed or appearance made on behalf of James H. Peterson, petitioner and appellee.

Monte L. Rogneby, Asst. Atty. Gen., Bismarck, for respondent and appellant.

VANDE WALLE, Chief Justice.

The North Dakota Department of Transportation [the Department] appealed a judgment of the district court, South Central Judicial District, reversing the Department's ninety-one-day suspension of James Howard Peterson's driver's license. Because we disagree with the district court's conclusion that the Department hearing officer performed investigatory functions in violation of section 28-32-12.2, N.D.C.C., we reverse its decision and reinstate the decision of the hearing officer.

At around 2:00 a.m. on September 17, 1994, Bismarck Police Officer John McDonald noticed that a vehicle traveling north on State Street was proceeding with its tires "right on" the lane dividers. After the car crossed "well over the line," the officer activated the lights on his patrol car and the vehicle pulled into a nearby parking lot and stopped. When Officer McDonald approached the vehicle and asked its driver, Peterson, for his driver's license, he noticed the smell of alcohol. Peterson was asked to perform several field sobriety tests which, according to the officer, he failed. Peterson was arrested for driving under the influence of alcohol.

Peterson was later given an Intoxilyzer test, which revealed a blood-alcohol content of .13. The test was administered by Officer James Chase of the Bismarck Police Department. On the official form which Officer Chase filled out with the testing data, he misidentified the standard solution which was used on the test. The solution used, Solution 386, was approved by the state toxicologist. Officer Chase misidentified it as Solution 382, which identified a solution approved by the toxicologist but no longer in use.

While preparing for the hearing regarding Peterson's driver's license revocation, the hearing officer noticed that the identification number of the solution was different than the number on forms from other, contemporarily administered Intoxilyzer tests. In order to obtain an explanation for this discrepancy, she subpoenaed Officer Chase to appear at the hearing and to bring any documents which related to the suspension of Peterson's driving privileges. At the hearing, over the objections of Peterson's counsel, Officer Chase testified that the misidentification resulted from an error in transcription and that Solution 386 had actually been used. He testified that the forms completed for the last test administered prior to Peterson's and the forms for the two tests following Peterson's correctly identified Solution 386, and, therefore, Peterson's test would have been administered using Solution 386.

The hearing officer concluded that Peterson was lawfully arrested and tested. She ordered that his license be suspended for ninety-one days. On appeal, the district court reversed, concluding that, by subpoenaing and questioning Officer Chase, the hearing officer had performed investigatory functions and violated the restrictions of section 28-32-12.2, N.D.C.C.

"When an administrative agency decision is appealed to a district court and then to this court, we review the decision of the agency and look to the record compiled before the agency. Our review of that decision is governed by [section] 28-32-19, N.D.C.C., which requires us to affirm: (1) if the findings of fact are supported by a preponderance of the evidence; (2) if the conclusions of law are sustained by the findings of fact; (3) if the agency decision is supported by the conclusions of law; and (4) if the decision is in accordance with the law. Under [section] 28-32-19(4), N.D.C.C., we must overturn an administrative agency decision if the agency's rules or procedures do not afford the appellant a fair hearing."

Dittus v. North Dakota Dep't of Transp., 502 N.W.2d 100, 102-03 (N.D.1993) [citations omitted].

The mere combination of adjudicative and prosecutorial functions in a Department hearing officer does not, by itself, violate a driver's due process rights. Dittus, supra; see also Pladson v. Hjelle, 368 N.W.2d 508, 511 (N.D.1985) ["Considering the limited scope of the administrative hearing, the adequacy of judicial review ..., and the presence of [the driver]'s counsel at the hearing, we conclude that the combination of adjudicative and prosecutorial functions in the hearing officer does not violate due process."]. However, the legislature has provided safeguards to ensure some separation of the adjudicative and prosecutorial functions. E.g., N.D.C.C. Sec. 28-32-12.2.

But, section 28-32-09(2), N.D.C.C., provides that

"Any hearing officer may require, upon the request of any party to the proceedings...