Barros v. North Dakota Department of Transportation

2008 ND 132, 751 N.W.2d 261, 2008 N.D. LEXIS 125, 2008 WL 2522625
CourtNorth Dakota Supreme Court
DecidedJune 26, 2008
Docket20080066
StatusPublished
Cited by10 cases

This text of 2008 ND 132 (Barros v. North Dakota Department of Transportation) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barros v. North Dakota Department of Transportation, 2008 ND 132, 751 N.W.2d 261, 2008 N.D. LEXIS 125, 2008 WL 2522625 (N.D. 2008).

Opinion

SANDSTROM, Justice.

[¶ 1] Christopher Barros appeals a district court judgment affirming an administrative hearing officer’s decision to suspend his driving privileges for 91 days following his arrest for driving under the influence of intoxicating liquor. We affirm.

I

[¶ 2] On October 19, 2007, Officers Michael Kapella and William Stepp of the Mandan Police Department arrested Bar-ros for being in actual physical control of a vehicle while under the influence of intoxicating liquor. Barros was taken to the *262 Morton County Jail, where a blood test was administered. The blood test indicated Barros had an alcohol concentration of 0.13 percent by weight. Barros requested an administrative hearing following the arrest.

[¶ 3] At the hearing, Barros argued that chain of custody for the blood sample was not sufficiently established. Form 104, which contains the blood test results, lists two different dates regarding when the blood was collected. The nurse who drew the blood wrote “10/19/07” as the date the specimen was obtained. In the “For Laboratory Use” portion of the form, Cindy Leingang, who certified that she received the blood specimen, wrote “date of sample collection on tube label 10/18/07” in the space labeled “Remarks.” Officer Kapella acknowledged the different dates on Form 104, testifying the reason for the difference in dates was “[pjrobably bad handwriting on my part, obviously.” He testified he filled out the label that was fixed over the tube containing the blood sample drawn from Barros. He testified he intended the date on the tube label to be “10/19/07,” but it was possible he wrote “10/18/07” by mistake, because he has bad handwriting. He testified he did not do any more blood draws on October 18 or October 19; Barros’s was the only blood draw he was involved with. He testified he completed the specimen submitter’s checklist portion of Form 104, which listed “10/19/07” as the date the blood sample was obtained. He testified he completed all of the check-marked items on the checklist. He testified he completed the top portion of Form 104, which contains the subject’s name, the specimen submitter’s name, the specimen collector’s certification, and an area labeled “For Laboratory Use,” which contains the specimen receiver’s certification. He testified he was present when the nurse who administered the blood draw completed the blood specimen collector portion of Form 104. The nurse wrote “10/19/07” as the date the specimen was obtained. He testified that the sample was placed in a protective container and that he kept the container with him at all times until he dropped it off in the mailbox to be sent out to the lab for testing.

[¶ 4] Officer Stepp testified he was also present when the blood sample was taken. He testified the blood was drawn on October 19, 2007. He testified he observed Officer Kapella complete the specimen submitter’s checklist and affix the label over the tube containing Barros’s blood specimen approximately a minute or so after the blood was drawn.

[¶ 5] Barros objected to the admittance of Form 104, arguing that chain of custody had not been established. The hearing officer overruled the objection, and Form 104 was admitted. Barros’s driving privileges were suspended for 91 days. The district court affirmed the hearing officer’s decision.

[¶ 6] Barros timely requested an administrative 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 Department of Transportation’s 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. Const, art. VI, § 8, and N.D.C.C. § 39-20-06. Barros filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 7] The review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, *263 N.D.C.C. ch. 28-32. Leno v. Dep’t of Transp., 2008 ND 10, ¶ 6, 743 N.W.2d 794. The district court, under N.D.C.C. § 28-32-46, and this Court, under N.D.C.C. § 28-32-49, must affirm an agency’s order 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.
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.

N.D.C.C. § 28-32^6.

[¶ 8] We discussed our standard of review of an administrative agency’s decision in Kiecker v. N.D. Dep’t of Transp., 2005 ND 23, ¶ 8, 691 N.W.2d 266.

On appeal, courts “must review an appeal from the determination of an administrative agency based only on the record filed with the court.” When reviewing an administrative agency’s factual findings, “we do not make independent findings of fact or substitute our judgment for that of the agency.” 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. “An agency’s decisions on questions of law are fully reviewable.”

Id. (citations omitted).

Ill

[¶ 9] On appeal, Barros argues the blood sample he submitted was inadmissible because the Department failed to present evidence establishing a chain of custody for the blood sample. Subsections (5), (8), and (10) of section 39-20-07, N.D.C.C., govern the admissibility of blood sample test results:

Interpretation of chemical tests. Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor, drugs, or a combination thereof, evidence of the amount of alcohol, drugs, or a combination thereof in the person’s blood at the time of the act alleged as shown by a chemical analysis of the blood, breath, saliva, or urine is admissible. For the purpose of this section:
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5.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 ND 132, 751 N.W.2d 261, 2008 N.D. LEXIS 125, 2008 WL 2522625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barros-v-north-dakota-department-of-transportation-nd-2008.