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Lee v. North Dakota Dep't of Transportation1/14/2004
The North Dakota Department of Transportation appeals from a district court judgment reversing an administrative hearing officer's decision to suspend Della Mae Lee's driving privileges for 91 days. We affirm the district court judgment.
I.
[ ] On December 31, 2002, at around 9:30 p.m., Jamestown police officer Aaron Berg, acting on a tip by a patron in a bowling alley, found Lee slumped over the steering wheel of her idling vehicle. The officer decided to perform a welfare check to determine if Lee needed assistance. The officer knocked on the window to wake Lee. When this failed, he opened the door and shouted at her. Lee awoke and the officer proceeded to ask Lee for identification. The officer also asked Lee several questions.
[ ] The officer noticed a strong odor of alcohol coming from inside the vehicle and from Lee. He observed Lee appeared confused and had poor balance when she exited the vehicle upon Berg's request. Berg administered field sobriety tests and a field screening test, all of which Lee failed.
[ ] Lee was arrested by Jamestown police for being in actual physical control of a vehicle while under the influence of intoxicating liquor. At the police station, Lee submitted to an Intoxilyzer test, which showed a blood alcohol content of .12%.
[ ] Officer Berg issued a Report and Notice to Lee, which indicated the Department would suspend her driving privileges unless she requested a hearing. Lee requested an administrative hearing. At the hearing on January 30, 2003, the arresting officer testified he administered the Intoxilyzer test and did so according to the method approved by the state toxicologist. A copy of the approved method for conducting an Intoxilyzer test was not admitted into evidence at the administrative hearing. Instead, a copy of the approved method for conducting a blood test was admitted, apparently by mistake. In his closing statement at the hearing, the attorney for Lee argued lack of foundation for the results of the Intoxilyzer test because no exhibit had been introduced on the approved method to conduct such a test. At the conclusion of the hearing, the administrative officer determined there were reasonable grounds for believing Lee had been in actual physical control of a vehicle while under the influence of intoxicating liquor and suspended Lee's driving privileges for 91 days. The hearing officer's decision commented:
Regardless of Exhibit 8 being for blood testing rather than Intoxilyzer testing, there is no basis for dismissal on the grounds the approved method has not been shown. The officer's testimony established that he was aware of the approved method and followed the approved method. There is no evidence that the approved method was not used, and there is no evidence that there is any issue as to the approved method.
[ ] Lee appealed the decision to the district court. The district court reversed the administrative hearing decision because there was a lack of evidence concerning the approved method to conduct a breath test with the Intoxilyzer used by the officer necessary to establish a foundation for the admission of the results. The Department filed this appeal.
II.
[ ] The Administrative Agencies Practice Act governs this Court's review of administrative decisions appealed from a district court judgment involving a license suspension. Sonsthagen v. Sprynczynatyk, 2003 ND 90, 7, 663 N.W.2d 161. On appeal, we look to the record before the administrative agency. Id. Section 39-20-05(2), N.D.C.C., prescribes the issues to be determined at an administrative hearing:
[T]he hearing . . . may cover only the issues of whether the arresting officer had reasonable g
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