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Knoll v. North Dakota Department of Transportation5/14/2002
AFFIRMED.
[ ] Darin Lee Knoll appeals from a district court judgment affirming the North Dakota Department of Transportation's decision to suspend his driver's license. We affirm, concluding (1) Knoll is barred from challenging the admissibility of his Intoxilyzer test results because he failed to reveal he had chewing tobacco in his mouth during the test, and (2) the outcome of Knoll's related criminal matter is not relevant to his administrative proceeding.
I.
[ ] Knoll was stopped by North Dakota Highway Patrol Officer Trevor Wahlen for weaving over the fog line and lane-dividing line. After he failed three roadside sobriety tests, Knoll was arrested for driving under the influence . The officer took Knoll to the Burleigh County Law Enforcement Center, where he administered an Intoxilyzer test. The test results indicated Knoll had a blood alcohol level of .10 percent.
[ ] Knoll requested and received an administrative hearing. At the hearing, Knoll argued the Intoxilyzer test was not fairly administered because he had chewing tobacco in his mouth at the time of the test. Officer Wahlen testified he could not remember the exact questions he had asked Knoll, but stated he usually asked whether the person had anything in his or her mouth prior to taking a breath sample. Knoll testified he thought the officer was referring only to food when the officer asked him whether he had anything in his mouth. Knoll told the officer there was nothing in his mouth, even though he had chewing tobacco in his mouth when he took the Intoxilyzer test. The hearing officer accepted the Intoxilyzer test results into evidence and suspended Knoll's license for 91 days.
[ ] Knoll appealed to the district court. The district court, noting Knoll had failed to cooperate with the officer's attempt to follow the approved method in giving the test, concluded Knoll could not challenge the admissibility of the test on the ground the approved method was not followed.
[ ] Knoll made a timely request for a hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. The notice of appeal from the district court judgment was timely under N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-32-21.
II.
[ ] "The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative agency decision to suspend a driver's license." Lapp v. N.D. Dep't of Transp., 2001 ND 140, 6, 632 N.W.2d 419. The record and decision of the administrative agency, not the ruling of the district court, are reviewed on appeal. McPeak v. Moore, 545 N.W.2d 761, 762 (N.D. 1996). " review is limited to the record before the agency." Ringsaker v. Dir., N.D. Dep't of Transp., 1999 ND 127, 5, 596 N.W.2d 328. Under N.D.C.C. § 28-32-46, the Court is required to affirm the order of the agency, unless:
ù The order is not in accordance with the law.
ù The order is in violation of the constitutional rights of the appellant.
ù The provisions of this chapter have not been complied with in the proceedings before the agency.
ù The rules or procedure of the agency have not afforded the appellant a fair hearing.
ù The findings of fact made by the agency are not supported by a preponderance of the evidence.
ù The conclusions of law and order of the agency are not supported by its find
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