Schwind v. Director, North Dakota Dept. of Transp., 900133

Decision Date31 October 1990
Docket NumberNo. 900133,900133
Citation462 N.W.2d 147
PartiesJeffrey B. SCHWIND, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant. Civ.
CourtNorth Dakota Supreme Court

Elaine Ayers, Asst. Atty. Gen., Bismarck, for respondent and appellant.

James A. Wright of Weiss, Wright, Paulson & Merrick, Jamestown, for petitioner and appellee; appearance by Cynthia Schaar-Macklenberg.


This is an appeal by the Director of the North Dakota Department of Transportation from a district court judgment reversing the administrative hearing officer's decision to suspend Jeffrey B. Schwind's driving privileges for 91 days. We reverse.

On September 30, 1989, Stutsman County Sheriff's Deputy Richard Griffin stopped a vehicle, driven by Schwind, for failure to observe a stop sign. Deputy Griffin approached the vehicle. He detected the odor of alcohol on Schwind's breath and observed that Schwind had bloodshot eyes. Schwind admitted to Deputy Griffin that he had been drinking.

At Deputy Griffin's request, Schwind performed several field-sobriety tests. Deputy Griffin concluded that Schwind was under the influence of alcohol, placed him under arrest and transported him to the emergency room at the Jamestown Hospital for a blood test.

While at the hospital, a registered nurse collected the blood specimen from Schwind, in accordance with State Toxicologist form 104. Form 104 provides a checklist of instructions to be completed by the blood-specimen collector. In the instant case, the nurse did not check the box on the front of form 104 which indicates whether or not the container seal on the blood kit canister was intact before use. Deputy Griffin did initial the box and testified that the canister was sealed prior to use by the nurse. The instructions on form 104 were complied with in all other respects.

As required by chapter 39-20, NDCC, Deputy Griffin mailed a written report and notice to the Director within five days of issuing Schwind a temporary operator's permit. Deputy Griffin did not indicate on the report and notice whether or not Schwind's driving license was attached. The record does not indicate whether Deputy Griffin ever sent the license to the Director as he was directed to do under section 39-20-03.1, NDCC.

Schwind contended that the lack of evidence of compliance with section 39-20-03.1, NDCC, was fatal to the Director's jurisdiction to conduct a hearing and that deviation from procedures prescribed by the State Toxicologist invalidated the blood test. The hearing officer did not agree; he held that the possible failure of Deputy Griffin to submit the license was a non-issue and that despite the nurse's failure to complete Form 104 correctly, the test was completed properly.

The district court reversed the decision of the hearing officer, concluding that the two procedural defects raised "a question about the jurisdiction of the Department to hear the matter and also the foundational requirements for the admission of the test result in this matter were not properly shown."

The Director raises two issues on appeal.

I. Whether the lack of evidence that Schwind's driver's license was sent to the Director is fatal to the Director's jurisdiction to conduct an administrative hearing.

II. Whether the evidence proved that the State Toxicologist's directions for sample collection were followed and assured the accuracy and reliability of the blood tests.

The Administrative Agencies Practice Act, chapter 28-32, NDCC, governs an appeal from a district court judgment involving a license suspension under section 39-20-05, NDCC. Greaves v. North Dakota State Highway Comm'r, 432 N.W.2d 879 (N.D.1988). We, therefore, look to the record of the administrative agency, rather than the findings of the district court. Id.

"Our role in reviewing the factual basis of an administrative decision is limited to a consideration of the following questions: '(1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law?' Asbridge, supra. [Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739 (N.D.1980).] This Court also considers whether the decision violates constitutional rights or is not in accordance with the law. See Sec. 28-32-19, N.D.C.C. We exercise restraint in reviewing the findings of an administrative agency; we do not substitute our judgment for that of the agency. [Citation omitted.]" Dodds v. North Dakota State Highway Comm'r, 354 N.W.2d 165, 168 (N.D.1984).


Section 39-20-03.1, NDCC, 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 a blood 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:

"1. The law enforcement officer shall immediately take possession of the person's operator's license if it is then available and shall immediately issue to that person a temporary operator's permit if the person then has valid operating privileges.... [Emphasis added.]

. . . . .

"3. The law enforcement officer, within five days of the issuance of the temporary operator's permit, shall forward to the commissioner a certified written report in the form required by the commissioner and the person's operator's license taken under subsection 1 or 2.... In addition to the operator's license and report, the law enforcement officer shall forward to the commissioner a certified copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for a blood, saliva, or urine test for all tests administered at the direction of the officer."

The Director asserts that the language regarding forwarding of the operator's license to the Director is not jurisdictional. We agree.

A public administrative body has such adjudicatory jurisdiction as is conferred on it by statute. Springville Community School Dist. v. Iowa Dep't of Pub. Instruction, 252 Iowa 907, 109 N.W.2d 213, 217 (Iowa 1961). The jurisdiction of an administrative agency is dependent upon the terms of the statute and must meet at least the basic mandatory provisions of the statute before jurisdiction is established. 2 Am.Jur.2d Administrative Law Sec. 328 (1962).

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. Fireman's Fund Mortgage Corp. v. Smith, 436 N.W.2d 246 (N.D.1989). Where adherence to the letter of the law would result in an absurdity, we have noted that "[e]ffect will be given the real intention even though contrary to the letter of the law." Perry v. Erling, 132 N.W.2d 889, 896 (N.D.1965) [quoting 82 C.J.S. Statutes Sec. 325 (1953) ].

The clear legislative intent in enacting chapter 39-20, NDCC, was for the protection of the public, i.e., to prevent individuals from driving while under the influence of intoxicants. Williams v. North Dakota State Highway Comm'r, 417 N.W.2d 359, 360 (N.D.1987); Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 750 (N.D.1980). Section 39-20-03.1, NDCC, was enacted, in part, to help ensure that an individual who violated this chapter would not continue to drive. It would be an absurd result if we were to hold that an officer's failure to strictly comply with this portion of the statute had the opposite effect. While it is clear that section 39-20-03.1, NDCC, requires the officer to forward the operator's license, the failure to do so does not destroy the Director's jurisdiction to suspend a violator's driving privileges. A contrary holding would defeat the Legislature's intent to protect the public from potential hazards posed by intoxicated drivers.

At oral argument, counsel for Schwind asserted for the first time that Section 39-20-04.1, NDCC, supported Schwind's contention that the Director's jurisdiction was dependent upon receiving the operator's licenses. Section 39-20-04.1, NDCC, provides, in part:

"1. After the receipt of a person's operator's license, if taken under section 39-20-03.1 or 39-20-03.2, and the certified report of a law enforcement officer and if no written request for hearing has been received from the arrested person under section 39-20-05, or if that hearing is requested and the findings, conclusions, and decision from the hearing confirm that the law enforcement officer had reasonable grounds to arrest the person and test results show that the arrested person was driving or in physical control of a vehicle while having a blood alcohol concentration of at least ten 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, the commissioner shall suspend the person's operator's license...." [Emphasis added.]

Consideration of this statute does not alter the analysis of this case.

The language in section 39-20-04.1 is consistent with the language in section...

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