Anton v. Moore, Dir., ND Dept. of Transportation

1998 ND 205

• Court: North Dakota Supreme Court
• Decided: November 23, 1998
• Docket: 980186
• Status: Published

Opinion

Filed 11/23/98 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

1998 ND 205

Lorenz Anton,                 Petitioner and Appellee

      v.

Marshall Moore, Director,

North Dakota Department                                            of Transportation, Respondent and Appellant

Civil No. 980186

Appeal from the District Court of Mountrail County, Northwest Judicial District, the Honorable Robert W. Holte, Judge.

REVERSED.

Per Curiam.

Thomas K. Schoppert, Schoppert Law Firm, Northland Professional Building, 600 22nd Avenue NW, Minot, ND 58703, for petitioner and appellee.

Candace A. Prigge, Assistant Attorney General, Attorney General's Office, 900 East Boulevard Avenue, Bismarck, ND 58505-

0041, for respondent and appellant.

Anton v. Moore

[¶1] The North Dakota Department of Transportation appealed from a district court judgment reversing an administrative agency decision to suspend Lorenz Anton’s driving privileges for driving under the influence of alcohol.  The Department argues the administrative hearing officer’s finding that Anton refused the chemical test was supported by a preponderance of the evidence and therefore the district court erred in reversing the agency’s decision.  We agree, concluding Lorenzen v. State Highway Comm’r , 401 N.W.2d 526 (N.D. 1987), is dispositive of this appeal.  In Lorenzen , we stated:

In deciding whether the findings of fact made by an administrative agency are supported by a preponderance of the evidence, we determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.  We do not decide whether the hearing officer was right in his factual determinations and inferences. (Citations omitted).

Id. at 528.  After review of the record and transcript, we believe the hearing officer’s finding Anton refused to take the Intoxilyzer test is supported by a preponderance of the evidence.  Therefore, we summarily reverse under Rule 35.1(b), N.D.R.App.P. and reinstate the license suspension.

[¶2] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

William A. Neumann

Mary Muehlen Maring

William F. Hodny, S.J.

[¶3] William F. Hodny, S.J., sitting in place of Kapsner, J., disqualified.