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Bollin v. North Dakota Dep't of Transportation5/17/2005
AFFIRMED.
[ ] The North Dakota Department of Transportation ("Department") appeals from a district court judgment reversing the administrative hearing officer's suspension of Eric Scott Bollin's driving privileges for 365 days after he was arrested for driving under the influence of alcohol. We affirm.
I.
[ ] Burleigh County Deputy Sheriff Kirk Hagel stopped Bollin after observing Bollin's car cross the center line of the highway. Deputy Hagel smelled alcohol and observed Bollin's eyes were bloodshot and glassy, and Bollin admitted he had consumed alcohol. Bollin failed the field sobriety tests and registered a blood alcohol concentration of 0.089 percent by weight on the onsite breath screening test. Deputy Hagel arrested Bollin for driving under the influence of alcohol and took him to a hospital for blood testing.
[ ] The nurse administering the test twice attempted to obtain a blood sample from Bollin. The first attempt collected an insufficient amount of blood, but the second attempt was successful. Analysis of the second sample indicated a blood alcohol concentration of 0.12 percent by weight. Bollin received a temporary operator's permit and requested an administrative hearing.
[ ] Bollin objected at the administrative hearing to admission of the test results. When asked to specify his objection, Bollin's counsel replied that he would specify the objection after cross-examination. The hearing officer admitted the results over the objection.
[ ] Bollin's counsel questioned Deputy Hagel and the state toxicologist about the use of disinfectant during the collection of Bollin's blood sample. The nurse who collected the sample indicated on the checklist that she had used the disinfectant that came with the kit, but she also marked that an alternative disinfectant had been used. The line for providing the name of the alternative disinfectant was left blank. The state toxicologist testified that the level of alcohol in the disinfectant could affect the test results, and without knowing what disinfectant was used, she could not testify the results were accurate. Deputy Hagel testified he was present when the sample was obtained, and he did not recall the nurse using an alternative disinfectant. He admitted he was not one hundred percent certain an alternative disinfectant had not been used, and he acknowledged that only the nurse could testify with complete certainty.
[ ] The administrative hearing officer decided it was more likely the nurse inadvertently checked an extra box on the form than used an alternative disinfectant without Deputy Hagel realizing it and suspended Bollin's license for 365 days. Bollin appealed and the district court reversed the suspension.
II.
[ ] Although on appeal this Court reviews the record before the administrative agency, Ringsaker v. Director, N.D. Dep't of Transp., 1999 ND 127, 5, 596 N.W.2d 328, the district court's sound reasoning is entitled to respect, Lee v. N.D. Dep't of Transp., 2004 ND 7, 8, 673 N.W.2d 245. This Court will affirm an agency's decision unless:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
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