Potratz v. N. Dakota Dep't of Transp.

• Decision Date: 11 March 2014
• Docket Number: No. 20130322.,20130322.
• Citation: 843 N.W.2d 305,2014 ND 48
• Court: North Dakota Supreme Court
• Parties: Joseph Daniel POTRATZ, Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

843 N.W.2d 305

2014 ND 48

Joseph Daniel POTRATZ, Appellant

v.NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

No. 20130322.

Supreme Court of North Dakota.

March 11, 2014.

Michael R. Hoffman, Bismarck, N.D., for appellant.

Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellee.

McEVERS, Justice.

[¶ 1] Joseph Daniel Potratz appeals the district court's judgment affirming the administrative hearing officer's decision suspending his driving privileges. We affirm the district court judgment.

I

[¶ 2] On February 17, 2013, Burleigh County Deputy Sheriff Danny Lemieux arrested Potratz for driving under the influence (“DUI”) and, subsequently, issued a certified written report, the Report and Notice form, to suspend Potratz's driving privileges. Potratz requested and received an administrative hearing, which occurred on March 15, 2013.

[¶ 3] At the administrative hearing, the deputy testified to the following events. At approximately 1:17 a.m., on February 17, 2013, while patrolling northbound on Highway 83, the deputy followed a black Dodge Ram pickup truck after observing it straddling the left fog line. The deputy later stopped the vehicle on a two lane road after observing it cross into the opposing traffic lane. The deputy observed the driver, later identified as Potratz, had bloodshot, glossy, watery eyes; an odor of an alcoholic beverage on his breath; and admitted drinking. The deputy conducted field tests on Potratz. Potratz passed the one leg stand test but did not pass the horizontal gaze nystagmus test, or the walk and turn test. The Alco–Sensor FST on-site screening test indicated a “0.101 percent breath alcohol content.” The deputy testified that he arrested Potratz for DUI and Potratz consented to an Intoxilyzer test, which revealed an alcohol concentration of .094 at 2:00 a.m.

[¶ 4] At the administrative hearing, the Report and Notice form, the Intoxilyzer Test Record and Checklist, and the Drivers License Division Central Record for Potratz were received into evidence. The Report and Notice form provided the date at the top of the form noting the date of the occurrence, and again in the middle of the form certifying the issuance of a temporary license, but the date was not listed in the test results portion noting only the time the sample was obtained. The Report and Notice form listed the time of driving as 1:17 a.m., the time of arrest as 1:27 a.m., and the time of the test as 2:00 a.m. The Report and Notice form indicated the specimen was provided by “breath” and listed the test results as “.094% BRAC.” The Intoxilyzer Test Record and Checklist listed the reported AC as “0.094” at 2:00 a.m. The Intoxilyzer Test Record and Checklist listed Potratz's weight as 180 pounds. The Drivers License Division Central Record listed Potratz's weight as 170 pounds.

[¶ 5] The administrative hearing officer concluded the deputy had reasonable grounds to believe Potratz had been driving under the influence and Potratz was properly tested after his arrest to determine his alcohol concentration within two hours of driving. On March 20, 2013, Potratz appealed the hearing officer's decision. The district court affirmed the hearing officer's decision. On October 16, 2013, Potratz appealed.

II

[¶ 6] On appeal, Potratz argues (1) the director lacked authority to suspend his driving privileges because the Report and Notice form failed to state the date the breath specimen was obtained and, therefore, violated N.D.C.C. ch. 39–20; (2) the director lacked authority to suspend Potratz's driving privileges because the Report and Notice form failed to state a test result of an alcohol concentration of at least eight one-hundredths of one percent by weight and, therefore, violated N.D.C.C. ch. 39–20; and (3) a preponderance of the evidence does not support that the Intoxilyzer machine was working properly because of the differing weights listed for Potratz in the Intoxilyzer Test Record and Checklist and the Drivers License Division Central Record.

[¶ 7] The Administrative Agency Practice Act governs this Court's review of an administrative decision to suspend a driver's license. N.D.C.C. ch. 28–32; Pesanti v. N.D. Dep't of Transp., 2013 ND 210, ¶ 7, 839 N.W.2d 851. This Court reviews the administrative agency's decision when a district court's review of an administrative agency's decision is appealed. Steinmeyer v. N.D. Dep't of Transp., 2009 ND 126, ¶ 8, 768 N.W.2d 491.

The review is limited to the record before the administrative agency. We review the administrative hearing officer's decision and give deference to the administrative hearing officer's findings. We do not, however, make independent findings or substitute our judgment for that of the agency. Rather, we determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. We defer to the hearing officer's opportunity to judge the credibility of witnesses.

Pesanti, at ¶ 7 (citations omitted). “This Court reviews questions of law de novo and gives deference to the Department's sound findings of fact.” Steinmeyer, at ¶ 8. This Court reviews an administrative hearing officer's evidentiary rulings under the abuse of discretion standard. Knudson v. Dir., N.D. Dep't of Transp., 530 N.W.2d 313, 317 (N.D.1995). This Court must affirm an administrative hearing officer'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.

III

[¶ 8] More specifically, Potratz argues (1) the director lacked authority to suspend his driving privileges because the Report and Notice form failed to include the date the breath specimen in the portion of the form indicating the time the test was obtained and, therefore, violated N.D.C.C. ch. 39–20; (2) the director lacked authority to suspend Potratz's driving privileges because the Report and Notice form failed to state a test result of an alcohol concentration of at least eight one-hundredths of one percent by weight because a percentage symbol and “BRAC” were included following the numerical test result of “.094” and, therefore, violated N.D.C.C. ch. 39–20; and (3) a preponderance of the evidence does not support that the Intoxilyzer machine was working properly because of the differing weights listed for Potratz in the Intoxilyzer Test Record and Checklist and the Drivers License Division Central Record.

A. Notice and Report Form

[¶ 9] “The Department's authority to suspend a person's license is given by statute and is dependent upon the terms of the statute.” Aamodt v. N.D. Dep't of Transp., 2004 ND 134, ¶ 15, 682 N.W.2d 308. “The Department must meet the basic and mandatory provisions of the statute to have authority to suspend a person's driving privileges.” Id. (citing Schwind v. Dir., N.D. Dep't of Transp., 462 N.W.2d 147, 150 (N.D.1990)). “While the jurisdiction of an administrative agency is dependent upon the terms of a statute, these terms must be construed logically so as not to produce an absurd result.” Schwind, at 150. “This Court has previously discussed whether certain provisions of N.D.C.C. § 39–20–03.1 are basic and mandatory provisions that require compliance before the Department is authorized to suspend a person's driving privileges.” Wampler v. N.D. Dep't of Transp., 2014 ND 24, ¶ 7.

[¶ 10] Under N.D.C.C. § 39–20–03.1, if a person's blood, breath, or urine test results show an alcohol concentration of eight one-hundredths of one percent by weight or more, the law enforcement officer must forward a certified written report to the director. This report must show:

[T]he officer had reasonable grounds to believe the individual had been driving ... while in violation of section 39–08–01, or equivalent ordinance, that the individual was lawfully arrested, that the individual was tested for alcohol concentration under this chapter, and that the results of the test show that the individual had an alcohol concentration of at least eight one-hundredths of one percent by weight....

N.D.C.C. § 39–20–03.1(4). “A properly completed report meeting the basic and mandatory provisions of the statute, along with the other matters required by the statute, is intended to give the Department the authority to suspend a driver's license and to provide a driver the means to know what the officer was relying on.” Wampler, 2014 ND 24, ¶ 8. In Jorgensen v. N.D. Dep't of Transp., 2005 ND 80, ¶ 13, 695 N.W.2d 212 (citations omitted), this Court reasoned:

Section 39–20–03.1, N.D.C.C., reflects a legislative intent to remove drunk drivers from the roads without slanting the law too much toward the Department's convenience. Section 39–20–05(1), N.D.C.C., gives a driver only a short time—ten days—after the issuance of a temporary operator's permit within which to request a hearing to challenge the suspension of his or her driving privileges. Thus, in determining whether to request a hearing, it is important that a driver facing the loss of driving privileges be able to quickly, conveniently, and certainly know what the officer is relying on. That information will be more quickly, conveniently, and certainly...