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May v. Sprynczynatyk4/11/2005
AFFIRMED.
[ ] Daryl May has appealed from a district court judgment affirming a hearing officer's decision to suspend May's driver's license for two years. We affirm, concluding that the failure of the Department of Transportation ("the Department") to file a transcript of the administrative hearing within twenty days did not require summary reversal of the hearing officer's decision and that May failed to raise a proper objection to admission of the Intoxilyzer test results.
I.
[ ] In the early morning hours of March 6, 2004, a Fargo police officer noticed May's vehicle being driven in an erratic manner. Upon stopping the vehicle, the officer noticed that May's eyes were watery and there was a strong odor of alcoholic beverages. May failed field sobriety tests and was arrested for driving under the influence . He was taken to the Cass County Jail, where an Intoxilyzer test showed a blood alcohol concentration of .19 percent.
[ ] May requested an administrative hearing, which was held on March 31, 2004. The hearing officer determined the stop of May's vehicle was justified and the Intoxilyzer test had been fairly administered in accordance with the State Toxicologist's approved method. The hearing officer ordered that May's license be suspended for two years. May appealed to the district court, which affirmed the decision of the hearing officer.
II.
[ ] Judicial review of a decision to suspend a driver's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28- 32. Larsen v. North Dakota Dep't of Transp., 2005 ND 51, 4; Kiecker v. North Dakota Dep't of Transp., 2005 ND 23, 7, 691 N.W.2d 266. Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:
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.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
On an appeal from a district court's ruling on an administrative appeal, this Court reviews the agency order in the same manner. N.D.C.C. § 28- 32-49; Larsen, at 4; Ringsaker v. Workforce Safety & Ins. Fund, 2005 ND 44, 9.
[ ] This Court exercises a limited review in appeals involving driver's license suspensions and revocations. Aamodt v. North Dakota Dep't of Transp., 2004 ND 134, 12, 682 N.W.2d 308; Wetsch v. North Dakota Dep't of Transp., 2004 ND 93, 10, 679 N.W.2d 282. We review the decision of the administrative agency, not the decision of the district court, and our review is limited to the record compiled before the agency. Kiecker, 2005 ND 23, 8, 691 N.W.2d 266; Wetsch, at 9. In reviewing an administrative agency's factual findings, we do not substitute our judgment for that of the agency or make independent findings of fact, but defer to the hearing officer's opportunity to judge the credibility of
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