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Buchholz v. State Dept. of Transportation2/20/2002
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Burt L. Riskedahl, Judge.
REVERSED.
[ ] The North Dakota Department of Transportation ("Department") appeals from a district court judgment reversing the Department's decision to suspend Deanna Buchholz's driving privileges for ninety-one days. We reverse the judgment of the district court and reinstate the hearing officer's suspension of Buchholz's license.
I.
[ ] On March 11, 2001, North Dakota Highway Patrol Officer Trevor Wahlen arrested Deanna Lynn Buchholz for driving under the influence of alcohol. After arresting Buchholz, Officer Wahlen transported her to the Morton County Law Enforcement Center where she consented to an Intoxilyzer test. The Intoxilyzer test administered by Officer Wahlen recorded Buchholz's blood alcohol concentration at .22 percent. Officer Wahlen then issued Buchholz a temporary operator's permit and a Report and Notice. Buchholz requested and received an administrative hearing on the suspension of her driving privileges.
[ ] During the hearing, Officer Wahlen testified he allowed Buchholz to use the restroom when they arrived at the Morton County Law Enforcement Center. Buchholz was not supervised while she was in the restroom. Officer Wahlen further testified that Buchholz emerged from the restroom at 1:43 a.m. According to the Intoxilyzer test report, Buchholz provided her first breath sample at 2:05 a.m. On the checklist submitted with the test report, Officer Wahlen indicated Buchholz had nothing to eat, drink, or smoke in the twenty minutes prior to the administration of the Intoxilyzer test, as required by the State Toxicologist's approved method for operating the Intoxilyzer. However, at the hearing, he testified he did not physically look into Buchholz's mouth at any time prior to administering the test. Officer Wahlen also stated that, although he routinely instructs arrestees not to place anything in their mouths, he could not recall if he asked Buchholz if she had anything in her mouth prior to administering the Intoxilyzer test.
[ ] After hearing Officer Wahlen's testimony, Buchholz objected to the admission of the Intoxilyzer test results on the ground that Officer Wahlen did not comply with the twenty-minute waiting period of the method approved by the State Toxicologist for conducting a breath test. The hearing officer overruled the objection and suspended Buchholz's driving privileges for ninety-one days.
[ ] Buchholz appealed the hearing officer's decision to the district court. The district court found Officer Wahlen "made no notes and does not have a recollection of `ascertain(ing) that the subject had nothing to eat, drink, or smoke within 20 minutes prior to the collection of the breath sample.'" Therefore, the court concluded the Intoxilyzer results were inadmissible and reversed the decision of the hearing officer. The Department appealed the district court's decision to this Court.
II.
[ ] The Administrative Agencies Practices Act, N.D.C.C. ch. 28-32, governs our review of administrative license suspensions. Houn v. N.D. Dept. of Transp., 2000 ND 131, 5, 613 N.W.2d 29. We limit our review to the record before the administrative agency, and we do not review the decision of the district court. Ringsaker v. Director, N.D. Dept. of Transp., 1999 ND 127, 5, 596 N.W.2d 328. We are required to affirm the agency's decision unless:
1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practices Act were not complied with in t
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