Torstenson v. Moore

• Decision Date: 11 August 1997
• Docket Number: No. 970093,970093
• Citation: 567 N.W.2d 622
• Parties: Jared Ryan TORSTENSON, Petitioner and Appellee, v. Marshall W. MOORE, Director, North Dakota Department of Transportation, Respondent and Appellant. Civil
• Court: North Dakota Supreme Court

Page 622

567 N.W.2d 622

1997 ND 159

Jared Ryan TORSTENSON, Petitioner and Appellee, v. Marshall W. MOORE, Director, North Dakota Department of Transportation, Respondent and Appellant.

Civil No. 970093.

Supreme Court of North Dakota.

Aug. 11, 1997.

Mary E. Nordsven (argued), Howe, Hardy, Galloway & Maus, PC, Dickinson, for petitioner and appellee.

Andrew Moraghan (argued), Assistant Attorney General, Attorney General's Office, Bismarck, for respondent and appellant.

MESCHKE, Justice.

¶1 The Department of Transportation appealed a district court judgment reversing the administrative suspension of Jared Torstenson's driving license for driving while impaired by alcohol (DUI). We reverse the judgment of the district court and remand for entry of judgment affirming the suspension.

¶2 Officer Jason Dellwo of the Dickinson police was on routine patrol on July 11, 1996. Near 3:00 a.m., he saw a pickup stopped in the middle of the intersection on his right, a block away. The stopped pickup was not pointed straight in the intersection, but was in the middle of the intersection facing the corner. Officer Dellwo went around the block, caught up with the pickup, and followed it for nearly five blocks. According to Officer Dellwo, the pickup was traveling down the middle of the road at about 20 miles per hour, and swerved back and forth from the parking lane to the middle of the road. Although the road had been recently tarred and graveled so there was no center line, Officer Dellwo said the pickup went "well over" the center of the road.

¶3 Officer Dellwo activated his flashing lights and stopped the pickup. When he asked the driver, Torstenson, to step out of the pickup, Torstenson walked with a stagger and swayed from side to side. Torstenson's face was red and flushed and his eyes were red and watery. Officer Dellwo also noticed that Torstenson's breath smelled of alcohol. Torstenson admitted he and his passengers were coming home from a keg party, and he had had one beer.

¶4 After Torstenson failed several field sobriety tests and refused to take an Alco-Sensor test, Officer Dellwo arrested him for DUI. A blood test reported Torstenson's blood had an alcohol concentration of .14 percent.

¶5 At an administrative hearing to suspend his license, Torstenson explained his erratic driving by testifying the street was extremely narrow, requiring a driver to swerve from the right side of the road over the center to avoid parked cars. Officer Dellwo, however, testified that the street was wide enough for two lanes of travel, and that there was "ample room" even with cars parked on both sides of the street. Torstenson was allowed to supplement the record with the affidavit of a surveyor indicating the street was 34 feet wide.

¶6 Torstenson argued that, because the narrowness of the street explained his erratic driving, Officer Dellwo did not have reasonable suspicion to stop his vehicle. Resolving the conflicts in the evidence, the hearing officer specifically found that Officer Dellwo's testimony was more credible, and concluded that Officer Dellwo had reasonable suspicion to stop the vehicle. The hearing officer also concluded that Officer Dellwo had probable cause to arrest Torstenson for DUI, and suspended Torstenson's driving license for 91 days.

¶7 Torstenson appealed. The district court reversed, reasoning:

After review of the transcript and the briefs filed by the parties, I do not believe that the findings of fact of the agency are supported by a preponderance of the evidence. Specifically, I don't believe that the officer had an articulable reasonable suspicion to stop the vehicle. I live one block from where the stop was made and frequently travel those same narrow streets in the exact manner described by the defendant.

The Director appealed to this Court.

¶8 The Administrative Agencies Practice Act governs review of an agency decision to suspend a driver's license. Kahl v. Director, 1997 ND 147, p 9, 567 N.W.2d 197. We review the record and decision of the agency, not the district court's. Larson v. North Dakota Dep't of Transp., 1997 ND 114, p 9, 564 N.W.2d 628. Our review of the agency's decision is limited to whether (1) a preponderance of the evidence supports the findings of fact; (2) the findings of fact sustain the conclusions of law; and (3) the conclusions of law support the agency's decision. Id. In reviewing the agency's findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency, but we determine only whether the agency reasonably determined the facts and conclusions from the weight of the entire evidence. Zimmerman v. North Dakota Dep't of Transp. Dir., 543 N.W.2d 479, 481 (N.D.1996). As we further explained in Zimmerman, id.: "Resolving disputes over the underlying facts and circumstances supporting an officer's reasonable and articulable suspicion is the exclusive province of the hearing officer, as is determining the credibility of witnesses and the weight to be given their testimony."

¶9 Although we ordinarily focus solely upon the decision of the agency, the district court's decision in this case needs comment. The district court expressly considered facts outside the record in concluding that the agency's findings were not supported by a preponderance of the evidence. It is settled, however, that courts must make factual decisions only upon the evidentiary record of testimony and exhibits. See State v. LaMorie, 558 N.W.2d 329, 331 (N.D.1996); McAdams v. McAdams, 530 N.W.2d 647, 651 (N.D.1995); Thorlaksen v. Thorlaksen, 453 N.W.2d 770, 773 (N.D.1990); Wood v. Krenz, 392 N.W.2d 395, 398 (N.D.1986); Hultberg v. Hultberg, 259 N.W.2d 41, 45 (N.D.1977). We explained in Wood, 392 N.W.2d at 398:

One of the fundamental precepts of our judicial system is that the finder of fact must rely only on the evidence presented in court. We have developed comprehensive rules regulating procedures and admissibility of evidence, all concerned with ensuring that trials are conducted fairly and that evidence submitted meets threshold indicia of reliability. These fundamental principles are ignored when a finder of fact goes outside the record and conducts its own informal investigation of factual matters without knowledge of the parties.

That principle is even more important when the district court, as in this case, functions as a reviewing court.

¶10 A court's review of an agency's findings of fact is limited to whether the findings were supported by a preponderance of the evidence, "based only on the record filed with the court." NDCC 28-32-19. Except to the extent otherwise provided by statute, "the agency record constitutes the exclusive basis for administrative agency action and judicial review of an administrative agency action." NDCC 28-32-17(5); see Sowatzki v. North Dakota Workers Compensation Bureau, 1997 ND 137, pp 15-16, 567 N.W.2d 189. In reviewing the agency's factual findings, this district court failed to exercise clearly established principles of law by using his personal experience in driving streets in the area where the stop occurred.

¶11 Torstenson argues the Department erred in finding that the street where he was stopped was wide enough for two lanes of travel when vehicles were parked on the street, and thus there was no reasonable suspicion of unlawful activity to justify Officer Dellwo's stop of his vehicle. We are not persuaded.

¶12...