 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Kappel v. Director ND Department of Transportation12/1/1999
Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Kirk Smith, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
[ ] Kenneth Kappel appealed from a district court judgment affirming the North Dakota Department of Transportation's ("Department") 91-day suspension of Kappel's driving privileges. We affirm.
[ ] On July 25, 1998 at 12:57 A.M., Officer Troy Vanyo, who was traveling east on Seventh Avenue South in Grand Forks, observed a motorcycle stopped at a stop sign at the intersection of Seventh Avenue South and South 14th Street. Although Officer Vanyo saw no traffic coming from either direction, the motorcycle remained at the stop sign for an extended period of time. In his report, Vanyo estimated Kappel paused for about ten seconds. When Officer Vanyo first saw the stopped motorcycle he was two or three blocks from the intersection, but the motorcycle remained at the intersection until Officer Vanyo was 20 feet behind the motorcycle. The motorcycle turned right onto South 14th Street and Officer Vanyo followed, observing the motorcycle weaving several times within its own lane between the 800 and 1000 block of South 14th Street. Vanyo stopped the motorcycle.
[ ] Vanyo observed Kappel staggered a bit and had poor balance when he got off the motorcycle. Vanyo detected the odor of alcohol on Kappel's breath and noticed his slurred speech. Kappel admitted to Vanyo he had consumed nine beers. After Vanyo administered several sobriety tests all of which Kappel failed, Kappel was arrested for driving under the influence .
[ ] Kappel requested and received an administrative hearing. The hearing officer found Officer Vanyo observed the motorcycle pausing longer than normal at the intersection and later observed the motorcycle weaving within its own lane. The hearing officer concluded Officer Vanyo had "a reasonable and articulable suspicion" that Kappel was driving under the influence .
[ ] Kappel appealed the decision to the district court. The district court affirmed, concluding the longer than normal pause at the intersection and the later weaving together were enough to constitute a reasonable and articulable suspicion justifying the stop of Kappel.
[ ] Our review of an appeal from a district court decision on a license suspension is governed by the Administrative Agencies Practice Act. Chapter 28-32, N.D.C.C. We review the record compiled and decision rendered by the agency, not the decision of the district court. Dworshak v. Moore, 1998 ND 172, 6, 583 N.W.2d 799.
We must affirm the agency's decision unless:
1) a preponderance of the evidence does not support the agency's findings; 2) the agency's findings of fact do not support its Conclusions of law and its decision; 3) the agency's decision violates the constitutional rights of the appellant; 4) the agency did not comply with the Administrative Agencies Practice Act in its proceedings; 5) the agency's rules or procedures have not afforded the appellant a fair hearing; or 6) the agency's decision is not in accordance with the law. Id. (quoting Greenwood v. Moore, 545 N.W.2d 790, 793 (N.D. 1996)).
[ ] Kappel contends Officer Vanyo did not have a reasonable and articulable suspicion Kappel was violating the law and thus everything discovered after the stop is inadmissible. "In order to legally stop a moving vehicle for an investigation, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law." City of Fargo v. Ovind, 1998 ND 69, 8, 575 N.W.2d 901. The reasonable suspicion standard must be o
Page 1 2 3 4 North Dakota DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|