Tooley v. Moore, 970078

• Citation: 565 N.W.2d 46
• Decision Date: 24 June 1997
• Docket Number: No. 970078,970078
• Parties: Curtis J. TOOLEY, Petitioner and Appellee, v. Marshall W. MOORE, Director, North Dakota Department of Transportation, Respondent and Appellant. Civil
• Court: United States State Supreme Court of North Dakota

Page 46

565 N.W.2d 46

1997 ND 120

Curtis J. TOOLEY, Petitioner and Appellee, v. Marshall W. MOORE, Director, North Dakota Department of

Transportation, Respondent and Appellant.

Civil No. 970078.

Supreme Court of North Dakota.

June 24, 1997.

Candace Ann Prigge (argued), Assistant Attorney General, Attorney General's Office, Bismarck, for respondent and appellant.

No appearance on behalf of appellee.

MESCHKE, Justice.

¶1 The Director of the North Dakota Department of Transportation appeals from a judgment reversing a suspension of Curtis Tooley's driving license for 365 days. We reverse and remand for reinstatement of the suspension.

¶2 While on patrol in Dickinson, Officer Andy Zachmeier stopped Tooley for a moving-traffic violation. The officer investigated the smell of alcohol, Tooley's bloodshot eyes, and Tooley's somewhat confused and slurred answers to the officer's questions. When Tooley failed an Alco-Sensor test, Officer Zachmeier arrested him for driving while impaired by alcohol. Tooley agreed to a blood test that later reported a blood-alcohol concentration of 0.22 percent.

¶3 During his blood test at the hospital, Tooley asked for an independent saliva test and to contact an attorney. Neither Officer Zachmeier or the hospital staff knew how to conduct a saliva test, so they could not administer one. Tooley did not request any other test, and he was allowed to contact an attorney.

¶4 At Tooley's suspension hearing, the hearing officer found Officer Zachmeier did not deny Tooley a reasonable opportunity to obtain an independent test, and suspended Tooley's driving privileges for 365 days. Tooley appealed. The district court reversed the suspension, concluding Tooley was denied an independent test when "he was advised by the officer that there was no available procedure for a saliva test." The Department appealed.

¶5 The standard of review for an administrative license suspension includes considering whether the hearing officer's findings of fact were supported by a preponderance of the evidence. Lock v. Moore, 541 N.W.2d 84, 86 (N.D.1995). Here, we conclude the evidence did support the hearing officer's decision.

¶6 By law, Tooley was entitled to obtain an independent chemical test, but his inability to obtain the one he wanted did not prevent the evidentiary use of the result from the test directed by the arresting officer.

... The person tested may have a ... qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer with all costs of an additional test or tests to be the sole responsibility of the person charged....