ERICKSTAD, Chief Justice.
Steven J. Dodds appeals from a judgment entered by the District Court of Bur-leigh County on November 29, 1983, which affirmed an administrative decision suspending his driver’s license pursuant to Section 39-20-04.1, N.D.C.C., for being in physical control of a vehicle while having a blood alcohol concentration of at least ten one-hundredths of one percent by weight.
We affirm.
On August 14, 1983, at approximately 1:38 a.m., Dodds was placed under arrest by Officer Richard L. Schaible of the Bismarck Police Department for being in actual physical control of a vehicle upon a highway while under the influence of intoxicating liquor.
See
§ 39-08-01(2)(b), N.D.C.C. Dodds submitted to a test of his breath pursuant to Section 39-20-01, N.D.C.C., which, when administered at 2:25 a.m., showed that he had a blood alcohol concentration of .16 percent by weight. An administrative hearing was held on August 29,1983, at the request of Dodds, following notification by the North Dakota State Highway Department of the department’s intent to suspend Dodds’ driving privileges.
The administrative hearing, civil in nature
[Asbridge v. North Dakota State Highway Commissioner,
291 N.W.2d 739, 750 (N.D.1980)], is limited in scope by statute to cover only the following issues:
(1) “whether the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of 39-08-01 or equivalent ordinance;”
(2) “whether the person was placed under arrest;”
(3) “whether the person was tested in accordance with section 39-20-01 or 39-20-03 and, if applicable, section 39-20-02; and”
(4) “whether, based on a review of the test procedures and results, the person had a blood alcohol concentration of at least ten one-hundredths of one percent by weight.” § 39-20-05(2), N.D.C.C.
After hearing the evidence presented, the administrative hearing officer, Mr. Breen Kennelly, made the following findings of fact, conclusions of law, and decision:
“Findings of Fact:
“Officer Schaible was called to a described vehicle that was parked with its engine running and Mr. Dodds was asleep at the wheel. There were open containers in the vehicle. When awakened, Officer Schaible detected a strong odor of alcohol on his breath and that his eyes were bloodshot. Mr. Dodds was given three balance and dexterity tests which he was unable to complete. Officer Schaible placed Mr. Dodds under arrest for being in actual physical control of a motor vehicle while under the influence of alcohol. He offered Mr. Dodds a chemical test which Mr. Dodds submitted to. It showed his blood contained over .10% blood alcohol' content.
“Conclusions of Law:
“I find Officer Schaible had the grounds to believe Mr. Dodds was in control of his vehicle while under the influence of alcohol. I find Mr. Dodds was placed under arrest for actual physical control of a vehicle while under the influence of alcohol. I find Mr. Dodds was tested in accordance with section 39-20-01. I find after a review of the test procedures and results that Mr. Dodds had a blood alcohol content of .10% or more.
“Decision Of Hearing Officer:
Suspend.”
Dodds appealed the decision of the administrative hearing officer to the district court pursuant to Section 39-20-06, N.D. C.C.,
designating as error the admission at
the hearing of the results of the chemical analysis “despite unrebutted expert testimony that the breathalyzer in question might well be subject to radio frequency interference.” The expert testimony referred to by Dodds was that of Mr. Kenneth B. Vollmer, who testified concerning the alleged susceptibility of the Smith and Wesson Model 900A Breathalyzer, a breath alcohol testing device apparently in use by the Bismarck Police Department, to radio frequency interference.
The district court found that there existed sufficient evidence to warrant the conclusion reached by the hearing officer and affirmed the decision.
Dodds raises the following issue on appeal to this Court:
“Did the district court err in determining that the administrative hearing officer was correct in ignoring unrebutted expert testimony and proceeding as if it had never been offered?”
Dodds primarily objects to a statement made in the district court’s opinion:
“Section 39-20-06 requires the court to affirm the commissioner’s decision unless it finds the evidence insufficient to warrant the conclusion reached. In this case the Court concludes the evidence was sufficient.
The distinction is not whether the evidence was ‘good enough’ but whether there was enough evidence.”
[Emphasis added.]
The above-emphasized language may have been the district’s court’s method of articulating its standard of review of the decision of an administrative hearing officer pursuant to Section 39-20-06, N.D.C.C.; nevertheless, it is not the function of this Court to review the district court’s decision. In an appeal of a district court’s judgment involving an order of suspension, revocation, or denial issued by the State Highway Commissioner under Section 39-20-04 or Section 39-20-04.1, N.D.C.C., the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C., applies
[see Hammeren v. North Dakota State Highway Commissioner,
315 N.W.2d 679, 683 (N.D.1982);
Asbridge v. North Dakota State Highway Com’r, supra,
291 N.W.2d at 743;
Agnew v. Hjelle,
216 N.W.2d 291, 294 (N.D.1974)]; therefore, in reviewing the evidence in this case, we look to the record compiled before the administrative agency and
not
to the findings of the district court.
Shark Brothers, Inc. v. Peterson,
345 N.W.2d 376, 379 (N.D.1984);
Hammeren v. North Dakota State Highway Com’r, supra; Asbridge, supra.
Our role in reviewing the factual basis of an administrative decision is limited to a consideration of the following questions: “(1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law?”
Asbridge, supra.
This Court also considers whether the decision violates constitutional rights or is not in accordance
with the law.
See
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ERICKSTAD, Chief Justice.
Steven J. Dodds appeals from a judgment entered by the District Court of Bur-leigh County on November 29, 1983, which affirmed an administrative decision suspending his driver’s license pursuant to Section 39-20-04.1, N.D.C.C., for being in physical control of a vehicle while having a blood alcohol concentration of at least ten one-hundredths of one percent by weight.
We affirm.
On August 14, 1983, at approximately 1:38 a.m., Dodds was placed under arrest by Officer Richard L. Schaible of the Bismarck Police Department for being in actual physical control of a vehicle upon a highway while under the influence of intoxicating liquor.
See
§ 39-08-01(2)(b), N.D.C.C. Dodds submitted to a test of his breath pursuant to Section 39-20-01, N.D.C.C., which, when administered at 2:25 a.m., showed that he had a blood alcohol concentration of .16 percent by weight. An administrative hearing was held on August 29,1983, at the request of Dodds, following notification by the North Dakota State Highway Department of the department’s intent to suspend Dodds’ driving privileges.
The administrative hearing, civil in nature
[Asbridge v. North Dakota State Highway Commissioner,
291 N.W.2d 739, 750 (N.D.1980)], is limited in scope by statute to cover only the following issues:
(1) “whether the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of 39-08-01 or equivalent ordinance;”
(2) “whether the person was placed under arrest;”
(3) “whether the person was tested in accordance with section 39-20-01 or 39-20-03 and, if applicable, section 39-20-02; and”
(4) “whether, based on a review of the test procedures and results, the person had a blood alcohol concentration of at least ten one-hundredths of one percent by weight.” § 39-20-05(2), N.D.C.C.
After hearing the evidence presented, the administrative hearing officer, Mr. Breen Kennelly, made the following findings of fact, conclusions of law, and decision:
“Findings of Fact:
“Officer Schaible was called to a described vehicle that was parked with its engine running and Mr. Dodds was asleep at the wheel. There were open containers in the vehicle. When awakened, Officer Schaible detected a strong odor of alcohol on his breath and that his eyes were bloodshot. Mr. Dodds was given three balance and dexterity tests which he was unable to complete. Officer Schaible placed Mr. Dodds under arrest for being in actual physical control of a motor vehicle while under the influence of alcohol. He offered Mr. Dodds a chemical test which Mr. Dodds submitted to. It showed his blood contained over .10% blood alcohol' content.
“Conclusions of Law:
“I find Officer Schaible had the grounds to believe Mr. Dodds was in control of his vehicle while under the influence of alcohol. I find Mr. Dodds was placed under arrest for actual physical control of a vehicle while under the influence of alcohol. I find Mr. Dodds was tested in accordance with section 39-20-01. I find after a review of the test procedures and results that Mr. Dodds had a blood alcohol content of .10% or more.
“Decision Of Hearing Officer:
Suspend.”
Dodds appealed the decision of the administrative hearing officer to the district court pursuant to Section 39-20-06, N.D. C.C.,
designating as error the admission at
the hearing of the results of the chemical analysis “despite unrebutted expert testimony that the breathalyzer in question might well be subject to radio frequency interference.” The expert testimony referred to by Dodds was that of Mr. Kenneth B. Vollmer, who testified concerning the alleged susceptibility of the Smith and Wesson Model 900A Breathalyzer, a breath alcohol testing device apparently in use by the Bismarck Police Department, to radio frequency interference.
The district court found that there existed sufficient evidence to warrant the conclusion reached by the hearing officer and affirmed the decision.
Dodds raises the following issue on appeal to this Court:
“Did the district court err in determining that the administrative hearing officer was correct in ignoring unrebutted expert testimony and proceeding as if it had never been offered?”
Dodds primarily objects to a statement made in the district court’s opinion:
“Section 39-20-06 requires the court to affirm the commissioner’s decision unless it finds the evidence insufficient to warrant the conclusion reached. In this case the Court concludes the evidence was sufficient.
The distinction is not whether the evidence was ‘good enough’ but whether there was enough evidence.”
[Emphasis added.]
The above-emphasized language may have been the district’s court’s method of articulating its standard of review of the decision of an administrative hearing officer pursuant to Section 39-20-06, N.D.C.C.; nevertheless, it is not the function of this Court to review the district court’s decision. In an appeal of a district court’s judgment involving an order of suspension, revocation, or denial issued by the State Highway Commissioner under Section 39-20-04 or Section 39-20-04.1, N.D.C.C., the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C., applies
[see Hammeren v. North Dakota State Highway Commissioner,
315 N.W.2d 679, 683 (N.D.1982);
Asbridge v. North Dakota State Highway Com’r, supra,
291 N.W.2d at 743;
Agnew v. Hjelle,
216 N.W.2d 291, 294 (N.D.1974)]; therefore, in reviewing the evidence in this case, we look to the record compiled before the administrative agency and
not
to the findings of the district court.
Shark Brothers, Inc. v. Peterson,
345 N.W.2d 376, 379 (N.D.1984);
Hammeren v. North Dakota State Highway Com’r, supra; Asbridge, supra.
Our role in reviewing the factual basis of an administrative decision is limited to a consideration of the following questions: “(1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law?”
Asbridge, supra.
This Court also considers whether the decision violates constitutional rights or is not in accordance
with the law.
See
§ 28-32-19, N.D.C.C.
We exercise restraint in reviewing the findings of an administrative agency; we do not substitute our judgment for that of the agency.
Asbridge, supra,
291 N.W.2d at 744.
Dodds argues that the administrative hearing officer disregarded the expert testimony of Mr. Vollmer and “did not address the question of the possibility that the breathalyzer test was not fairly administered.” The administrative hearing officer’s conclusion,
i.e.,
“I find
after a review of the test procedures and results
that Mr. Dodds had a blood alcohol content of .10% or more,” seems to imply that the hearing officer did, however, consider the expert testimony.
In
Gardebring v. Rizzo,
269 N.W.2d 104, 109 (N.D.1978), a case involving parental visitation rights, the custodial parent asserted that it was improper for the trial court to arbitrarily disregard the uncontra-dicted and unimpeached opinion evidence of experts to the effect that a non-custodial parent should have no legally enforceable right of visitation. We said:
“The rule in North Dakota as to the effect to be given expert testimony is clear. The credibility of expert witnesses, and the weight to be given their testimony, are matters to be determined by the trier of facts.
Waagen v. R.J.B.,
248 N.W.2d 815, 819 (N.D.1976);
Grabau v. Hartford Accident & Indemnity Co.,
149 N.W.2d 361 (N.D.1967);
Fisher v. Suko,
111 N.W.2d 360, 363 (N.D.1961);
In re Heart River Irr. District,
78 N.D. 302, 330, 49 N.W.2d 217, 232 (1951). We have also said that the trier of fact is not required to accept undisputed testimony, even of experts.
Waletzko v. Herdegen,
226 N.W.2d 648, 653 (N.D.1975). Finally, in Syl. 11 2 of
In re A.N.,
201 N.W.2d 118 (N.D.1972), we said:
‘2. While expert opinions are helpful, the courts are not required to accept such opinions as being conclusive.’ These cases do not stand for the proposition, though, that the trier of fact can arbitrarily disregard the testimony of experts, or for that matter, the testimony of any witness.”
See also Stillwell v. Cincinnati Incorporated,
336 N.W.2d 618, 621 (N.D.1983);
Cook v. Jacklitch & Sons, Inc.,
315 N.W.2d 660, 663 (N.D.1982);
Svetenko v. Svetenko,
306 N.W.2d 607, 610 (N.D.1981).
Mr. Vollmer testified that he has “been in electronics for about 20 years.” The first four of those years were spent in the Air Force where he worked specifically with radio frequency interference problems. He testified that he now sells, repairs and programs computers, but has been in contact with radio frequency interference problems several times in dealing with computers and burglar alarm systems.
Mr. Vollmer testified that part of the circuitry of the Smith and Wesson Model 900A Breathalyzer, as “demonstrated through numerous tests done by people in
Rhode Island and by the National Bureau of Standards and other people,” is susceptible to radio frequency interference which can cause inaccurate test results. He testified that the device “could be susceptible to any of a vast number of frequencies” through a ten-to-twenty second period during the course of the chemical analysis of the breath sample, and discussed a method by which the testing device could be screened from such interference. Vollmer could only speculate, however, as to possible sources of radio frequency interference in the Bismarck area, such as airplanes, helicopters, radio stations, etc. When asked whether the Model 900A Breathalyzer in use by the Bismarck Police Department had been tested for radio frequency interference, Mr. Vollmer responded: “The one at the police station? The only test results I saw was the ones from the sheriffs department, I think.” Vollmer also testified that he was aware that field inspectors of breath testing equipment — appointed, trained, certified, and supervised by the state toxicologist [§ 39-20-07(6), N.D.C.C.] — tested breathalyzers to determine their susceptibility to radio frequency interference from police transmitters.
Dodds’ attorney stipulated to the admissibility of certified copies of records filed by the state toxicologist with the clerk of the district court relating to the approval of devices and methods, and the certification of test operators. Such records, in the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while in actual physical control of a motor vehicle while under the influence of intoxicating liquor, “must be admitted as prima facie evidence of the matters stated in the records” to prove that the breathalyzer test was fairly administered. § 39-20-07, N.D.C.C.;
State v. Puhr,
316 N.W.2d 75, 77 (N.D.1982);
State v. Schneider,
270 N.W.2d 787, 791 (N.D.1978).
The weakness or non-existence of a basis for an expert’s opinion goes to the expert’s credibility, which is a matter for the trier of fact.
See Smith v. American Family Mutual Insurance Company,
294 N.W.2d 751, 763 (N.D.1980);
Feuerherm v. Ertelt,
286 N.W.2d 509, 513 (N.D.1979);
Gardebring v. Rizzo, supra.
In this case, the administrative hearing officer was the trier of fact with the responsibility for determining the credibility of the witnesses, the weight to be accorded their testimony, and for determining, based on a preponderance of the evidence (including a review of the test procedures and results), whether Dodds was operating a motor vehicle while having a blood alcohol concentration of at least .10 percent by weight. In our view, the general nature of Mr. Vollmer’s testimony merely raised the possibility that the breath testing device utilized in this case might have been or may be susceptible to radio frequency interference. We cannot conclude that the hearing officer arbitrarily disregarded the expert testimony.
After reviewing the record, we conclude that the administrative hearing officer’s findings of fact are supported by a preponderance of the evidence; that the- conclusions of law are sustained by the findings of fact; and that the agency’s decision is supported by the conclusions of law.
The judgment is affirmed.
VANDE WALLE, PEDERSON, GIERKE and SAND, JJ., concur.
