Phipps v. NORTH DAKOTA DEPT. OF TRANSP.

• Decision Date: 11 July 2002
• Docket Number: No. 20020055.,20020055.
• Citation: 646 N.W.2d 704,2002 ND 112
• Parties: Priscilla Carol PHIPPS, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
• Court: North Dakota Supreme Court

646 N.W.2d 704

2002 ND 112

Priscilla Carol PHIPPS, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

No. 20020055.

Supreme Court of North Dakota.

July 11, 2002.

Loren C. McCray, Solem Law Office, Beulah, for petitioner and appellee.

Andrew Moraghan, Assistant Attorney General, Office of the Attorney General, Bismarck, for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from a district court judgment reversing an administrative hearing officer's decision to suspend Priscilla Carol Phipps's driver's license. We reverse the district court, concluding a chemical test is performed when a breath, blood, or urine sample is taken and preserved for analysis, and a test performed exactly two hours after driving is performed within two hours of driving.

I

[¶ 2] A deputy sheriff stopped Priscilla Carol Phipps for speeding at 12:49 a.m., and subsequently arrested her at 1:14 a.m. for driving under the influence. While driving her to the Mercer County Law Enforcement Center, the officer called ahead and asked a jailer to turn on the Intoxilyzer. Once they reached the Law Enforcement Center, the officer attempted to take a breath sample from Phipps, but discovered the Intoxilyzer had not been turned on. Phipps requested and received a drink of water. She finished the water at 2:22 a.m. Phipps gave two breath samples, one at 2:43 a.m. and the second at 2:49 a.m. The final room air sample was taken at 2:50 a.m. The results of the tests showed Phipps had a blood alcohol level of.13% at 2:49 a.m.

[¶ 3] At the administrative hearing, the hearing officer admitted the results of the test and suspended Phipps's license for 91 days. The hearing officer found:

[No] provision of NDCC Ch. 39-20 specifically defines the exact moment that a breath test is concluded. Exhibit 8, the state toxicologist's approved method for the operation of the Intoxilyzer refers to the testing sequence on page 2 in the second full paragraph, but does not identify the moment at which the test is concluded for purposes of analyzing a motorist's breath to determine alcohol content. In Keepseagle v. Backes, 454 N.W.2d 312 (N.D.1990), the North Dakota Supreme Court held that a blood test is complete for purposes of compliance with the two hour time limit at the moment the blood sample is taken from the arm and not when the ultimate testing process has been finished. The same should hold true for breath-alcohol testing. In fact, the test record and checklist which is prepared, distributed and regulated by the state toxicologist, Exhibit 9, indicates on its face that the chemical test to determine the subject's blood alcohol concentration occurred at 2:49. Accordingly, the time of the test is the time the sample is taken and analyzed, not the time of the ultimate conclusion of the testing sequence. In this case, the properly conducted chemical analysis indicated [Phipps] had a blood alcohol concentration of at least 0.10% by weight as determined within two hours of the time she drove a motor vehicle, so [Phipps]'s license and driving privileges must be suspended pursuant to NDCC § 39-20-04.1.

[¶ 4] Phipps appealed the decision of the hearing officer. The district court reversed the hearing officer's decision and concluded the test was not performed within the allowed two-hour period. The district court stated:

The record indicates here that the second to the last step in the testing procedure, the second test of the subject's breath, was completed exactly two hours from the time of driving. The final step of the test, the last room air test, was actually completed one minute beyond the two hour time limit.

I conclude that the case really turns on the meaning of the word "performance" as it is used in 39-20-03.1. The State's position, apparently, is that performing the test does not necessarily have to include the final room air test, inasmuch as the alcohol reading is the crucial factor.

This Court disagrees with that conclusion, and based on the record of the case, now orders the decision of the agency reversed.

To "perform something ... is to begin and carry through to completion." The American Heritage Dictionary of the English Language. A chemical test done without the required final room air test is not a "performed test" in my opinion. Without the reading on the final room air sample, the test results would be left in question, and the test would be invalid. Because the record makes clear that the final step in the testing process did not occur within the two hour limit, the test was not performed within the required time.

The Department appealed from the district court's ruling.

[¶ 5] Phipps timely requested a hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39- 20-06. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The Department filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] "The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative agency decision to suspend a driver's license." Lapp v. N.D. Department of Transportation, 2001 ND 140, ¶ 6, 632 N.W.2d 419. On appeal, "we review the record and decision of the administrative agency, not the ruling of the district court." McPeak v. Moore, 545 N.W.2d 761, 762 (N.D.1996). "The district court's analysis is entitled to respect if its reasoning is sound." Kraft v. N.D. State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572. "[R]eview is limited to the record before the agency." Ringsaker v. Dir., N.D. Department of Transportation, 1999 ND 127, ¶ 5, 596 N.W.2d 328. We affirm the order of an agency, 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. "[W]hen reviewing the factual findings of an administrative agency `we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.'" Bryl v. Backes, 477 N.W.2d 809, 811 (N.D.1991) (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979)). "This standard defers to the hearing officer's opportunity to hear the witnesses' testimony and to judge their credibility and we will not disturb the agency's findings unless they are against the greater weight of the evidence." Johnson v. N.D. Department of Transportation, 530 N.W.2d 359, 361 (N.D.1995).

[¶ 7] When an "appeal involves the interpretation of a statute, a legal question, this Court will affirm the agency's order unless it finds the agency's order is not in accordance with the law." Erickson v. N.D. Department of Transportation, 507 N.W.2d 537, 539 (N.D.1993). "The interpretation of a statute is a question of law, fully reviewable" on appeal. Keepseagle v. Backes, 454 N.W.2d 312, 315 (N.D.1990).

Our primary objective in the interpretation of a statute is to ascertain the intent of the legislature. We look first to the language of the statute. If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit. If a statute's language is ambiguous or of doubtful meaning, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain legislative intent.

Id. (citations omitted).

III

[¶ 8] The issue on appeal is whether Phipps's Intoxilyzer test was performed within two hours of driving. This issue requires us to decide what constitutes "performance of a chemical test" under N.D.C.C. § 39-20-03.1, and whether "within two hours" includes a period of exactly two hours. Section 39-20-03.1, N.D.C.C., provides, in part:

If a person submits to a test under section 39-20-01, 39-20-02, or 39-20-03 and the test shows that person to have an alcohol concentration of at least ten one-hundredths of one percent by weight ... at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle, the following procedures apply....

The State Toxicologist's approved method sets forth the tests that are included in an Intoxilyzer test.

The North Dakota Intoxilyzer Test sequence shall include these tests in the following order: diagnostic test, room air test, subject test, room air test, standard solution test, room air test, subject test, and room air test.

Approved Method to Conduct Breath Test with Intoxilyzer, dated September 1, 2000.

A

[¶ 9] The Department argues the district court erred by concluding "performance of a chemical test," under N.D.C.C. § 39-20-03.1, requires the completion of each step in the testing sequence outlined in the approved method. The Department relies on the definition...