Schock v. N.D. Dep't of Transp.

• Decision Date: 03 May 2012
• Docket Number: No. 20110254.,20110254.
• Parties: Paul Alfred SCHOCK, Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: North Dakota Supreme Court

815 N.W.2d 255

2012 ND 77

Paul Alfred SCHOCK, Appellant,

v.NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

No. 20110254.

Supreme Court of North Dakota.

April 10, 2012.

Rehearing Denied May 3, 2012.

Danny L. Herbel (on brief), Bismarck, N.D., for appellant.

Michael T. Pitcher (on brief), Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellee.

SANDSTROM, Justice.

[¶ 1] Paul Schock appeals from a district court judgment affirming an administrative order suspending his driver's license for 180 days for driving a vehicle under the influence of intoxicating liquor. We affirm the judgment, concluding a reasoning mind reasonably could have concluded Schock provided a breath sample within two hours of driving a motor vehicle. We decline to grant his request for attorney's fees and costs under N.D.C.C. § 28–32–50.

I

[¶ 2] On March 13, 2011, a Beulah police officer stopped Schock for a traffic violation at 12:54 a.m. The officer smelled an odor of alcohol on Schock and asked him to exit his vehicle. The officer administered three field sobriety tests, and after Schock failed the tests, the officer arrested him for driving a vehicle while under the influence of intoxicating liquor. The officer brought Schock to the Mercer County Sheriff's office in Stanton, North Dakota, where a breath test was administered with an Intoxilyzer 8000. A printout from the breath test stated Schock began the test at 1:56 a.m. on March 13, 2011, and provided two breath samples—the first at 3:01 a.m. and the second at 3:07 a.m. The lowest test result showed Schock had a blood-alcohol concentration of 0.184 percent by weight. As a result, the officer issued Schock a temporary operator's permit under N.D.C.C. § 39–20–03.1, which notified Schock of the director of the North Dakota Department of Transportation's intent to suspend Schock's driving privileges.

[¶ 3] Schock requested a hearing on the intended administrative sanction, and on April 8, 2011, a hearing officer conducted an administrative hearing. At the hearing, the police officer testified as the Department's only witness, and Schock did not call any witnesses. The hearing officer received various exhibits into the record. Schock objected to the introduction of exhibits pertaining to the Intoxilyzer 8000 test results and the “report and notice form” completed by the police officer after he administered the breath test, arguing the Department lacked foundation to admit the results of the Intoxilyzer 8000 test and the Department had not presented sufficient testimony to establish the validity of the test or whether it was administered according to the approved method. The hearing officer admitted both exhibits into evidence, noting Schock's objection for the record.

[¶ 4] During closing arguments, Schock argued the record did not contain sufficient evidence that he took the breath test within two hours of driving a motor vehicle. He argued the only evidence admitted at the hearing showed the breath test occurred more than two hours after he drove a motor vehicle.

[¶ 5] In written findings of fact, the hearing officer found that daylight saving time took effect on March 13, 2011, at 2:00 a.m. and that the police officer administered the breath test within two hours of stopping Schock for a traffic violation. As a result, the hearing officer concluded the test results warranted a suspension of Schock's driving privileges for 180 days. The hearing officer's written decision was signed and dated on April 8, 2011, and the hearing officer mailed the decision to Schock on April 11, 2011, three days after the administrative hearing.

[¶ 6] Schock appealed the hearing officer's decision to the district court, arguing there was no evidence presented at the administrative hearing showing Officer Hirchert administered the breath test within two hours after Schock drove a motor vehicle, and the hearing officer did not “immediately” issue a decision, as required under N.D.C.C. § 39–20–05(5).

[¶ 7] The district court affirmed the hearing officer's decision, concluding the hearing officer's findings of fact were “reasonably based upon the available evidence,” and the hearing officer “orally inform[ed Schock] of his findings and conclusions at the completion of the hearing.” The district court found persuasive the Department's argument that a hearing officer may take judicial notice of daylight saving time and that the Chemical Test Operator Manual for the Intoxilyzer 8000 states the machine automatically accounts for daylight saving time and adjusts its times accordingly.

[¶ 8] Schock asked the district court to reconsider its decision, arguing that except for the report and notice form, there was no other evidence admitted at the administrative hearing to show when he drove the motor vehicle or when he took the breath test. He argued the Department did not offer, admit, or make part of the record the Chemical Test Operator Manual, and the district court should not have considered evidence not made part of the record at the administrative hearing. He also argued the hearing officer did not orally inform him of the findings of fact and conclusions of law at the completion of the hearing, which the Department conceded. The district court denied Schock's motion for reconsideration.

[¶ 9] Schock timely requested an administrative hearing under N.D.C.C. § 39–20–05. The hearing officer had jurisdiction under N.D.C.C. § 39–20–05. Under N.D.C.C. § 39–20–06, Schock timely appealed his license suspension to the district court. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 39–20–06. Schock timely appealed the district court's decision to this Court under N.D.C.C. § 28–32–49. We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–32–49.

II

[¶ 10] Schock argues there was no evidence presented at the administrative hearing showing the police officer administered the breath test within two hours after Schock drove a motor vehicle. He also argues the hearing officer failed to issue a decision “immediately” after the hearing, and the hearing officer's decision was without substantial justification, entitling him to recover attorney's fees and costs.

[¶ 11] The Administrative Agencies Practice Act, N.D.C.C. ch. 28–32, governs our review of an administrative decision to suspend or revoke a driver's license. Erickson v. Dir., N.D. Department of Transportation, 507 N.W.2d 537, 539 (N.D.1993). Under N.D.C.C. § 28–32–49, we review an appeal from a district court judgment in an administrative appeal in the same manner as allowed under N.D.C.C. § 28–32–46, which requires a district court to affirm an order of an administrative agency unless it finds:

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.

[¶ 12] We review “the record of the administrative agency as a basis for [our] decision rather than the district court decision.” Lamb v. Moore, 539 N.W.2d 862, 863 (N.D.1995). We do not make independent findings of fact or substitute our judgment for that of the agency, but rather only determine whether a reasoning mind reasonably could have concluded the findings reached were supported by the weight of the evidence from the entire record. Aamodt v. N.D. Department of Transportation, 2004 ND 134, ¶ 12, 682 N.W.2d 308. “We defer to the hearing officer's opportunity to judge the credibility of witnesses.” Id. “Whether the facts meet the legal standard, rising to the level of probable cause or reasonable and articulable suspicion, is a question of law fully reviewable on appeal.” Id. (quoting Dettler v. Sprynczynatyk, 2004 ND 54, ¶ 10, 676 N.W.2d 799).

A

[¶ 13] Schock argues there was no evidence presented at the administrative hearing showing the police officer administered the breath test within two hours after Schock drove a motor vehicle.

[¶ 14] The Department may impose an administrative sanction against a driver if “test results show that the arrested person was driving or in physical control of a vehicle while having an alcohol concentration of at least eight one-hundredths of one percent by weight ... at the time of the performance of a test within two hours after driving or being in physical control of a motor vehicle.” N.D.C.C. § 39–20–04.1(1).

[¶ 15] Schock contends no evidence was presented during the administrative hearing to establish that daylight saving time affected the time of the breath test. Instead, he argues, the hearing officer admitted as evidence the Department's report and notice form, which is admissible as prima facie evidence of its contents once it is forwarded to the Department director. Maher v. N.D. Department of Transportation, 539 N.W.2d 300, 303 (N.D.1995); Pavek v. Moore, 1997 ND 77, ¶ 8, 562 N.W.2d 574. The report and notice form showed the police officer stopped Schock's vehicle at 12:54 a.m. on March 13, 2011, and obtained a breath sample from him at 3:07 a.m. that day. Schock argues the hearing officer should have considered only the evidence admitted during the hearing in making his decision. Schock also argues the district court should not have considered the Department's post-hearing references to a Chemical Test...