Glaser v. North Dakota Department of Transportation

2017 ND 253, 902 N.W.2d 744, 2017 WL 4638667, 2017 N.D. LEXIS 250
CourtNorth Dakota Supreme Court
DecidedOctober 17, 2017
Docket20170129
StatusPublished
Cited by2 cases

This text of 2017 ND 253 (Glaser 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
Glaser v. North Dakota Department of Transportation, 2017 ND 253, 902 N.W.2d 744, 2017 WL 4638667, 2017 N.D. LEXIS 250 (N.D. 2017).

Opinion

McEvers, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from a district court judgment reversing a Department hearing officer’s decision to suspend Alexis Glaser’s driving privileges for two years. We conclude Glaser failed to rebut the prima facie evidence of the time of the accident on the report and notice, showing her chemical Intoxilyzer test was administered within two hours of driving. We further conclude a reasoning mind could reasonably conclude Glaser drove or was in physical control of a motor vehicle within two hours of performance of a chemical test was supported by a preponderance of the evidence on the entire record. We reverse the judgment and reinstate the suspension of Glaser’s driving privileges for two years.

I

[¶ 2] In June 2016, Bismarck Police Officer Del Gallagher responded to assist in a motor vehicle crash in the city of Bismarck at the request of Officer Rob Rasmussen. When Gallagher arrived, he observed two individuals standing outside the vehicle that appeared to have struck a parked car. Rasmussen told Gallagher that Glaser appeared to be intoxicated and that she was the driver of the vehicle. Rasmussen indicated Glaser failed the horizontal gaze nys-tagmus test and performed poorly on the walk-and-turn and one-leg stand tests. Gallagher continued the investigation for driving under the influence. Gallagher observed that Glaser’s eyes were glossy,- she had a dazed appearance, and a very strong odor of alcohol was coming from her. Glaser admitted to drinking six beers in two hours. Glaser agreed to taking an onsite screening test, showing her blood alcohol content was above the legal limit.

[¶ 3] Gallagher arrested Glaser for DUI and transported her to the Bismarck Police Department. At the police department, Glaser agreed to take a chemical Intoxilyzer breath test and was read her Miranda rights. Glaser’s blood alcohol content registered at .199 percent by weight. Gallagher issued a report and notice to Glaser, notifying Glaser of the Department’s intent to revoke her driving privileges. Glaser requested an administrative hearing.

[¶ 4] At the hearing, Gallagher testified that Rasmussen was at the site of a motor vehicle crash and requested a second unit to help him. Gallagher further testified he did not know exactly when the accident occurred and indicated the time of driving noted at 2:37 a.m. on the report and notice he issued was the time of the call reporting the accident. The report and notice indicating the breath specimen was obtained at 3:55 a.m. was admitted into evidence. The hearing officer also offered and admitted a motor vehicle crash report submitted by Rasmussen over Glaser’s objections. The crash report recorded the time of crash as 2:37 a.m. The hearing officer provided the following analysis:'

Ms. Glaser’s argument was that the time of driving could not be established so it cannot be established that the test was administered within two hours of driving.
Officer Rasmussen, the officer, Officer Gallagher had contact and conversation with prior to approaching Ms. Glaser prepared and submitted to the Department as a regularly kept record a crash report of the accident to which he was the responding officer, and was investigating. The greater weight of the evidence, including inferences taken from the fact that Ms. Glaser did not protest or state that she was not the driver, the fact that she was present at the hearing and did not take the stand, and that the information in the crash report shown on Exhibit IF matches the information on the report and notice form, indicates that Ms. Glaser was the driver of her vehicle that evening, that a crash occurred at or near 2:37 am. The test was administered at 3:55 leaving approximately 42 minutes before the two hours in which the test could be administered expired. Given the communication between officers prior to testing, Officer Gallagher's reliance on the information gathered by a fellow officer and communicated to him is enough for him to rely on when making a determination that Ms. Glaser was the driver of the vehicle and to ensure the test was administered within two hours of the time of driving.

(Emphasis added.) The hearing officer suspended Glaser’s driving privileges for a period of two years.

[¶ 5] Glaser appealed the hearing officer’s decision to the district court. On appeal, Glaser argued the Department failed to present any admissible evidence showing the chemical Intoxilyzer test was administered within two hours of driving. Glaser also argued the motor vehicle crash report, which contained the time of driving, was inadmissible for lack of foundation and hearsay.

[¶ 6] The district court held the motor vehicle crash report was admissible as it fell within the public records exception to the hearsay rule. The court also held Glaser failed to show the source of the information indicated a lack of trustworthiness. However, the court agreed with Glaser that the Department failed to establish the time of driving was within two hours of Glaser’s chemical test. Relying on Dawson v. N.D. Dep’t of Transp., 2013 ND 62, 830 N.W.2d 221, the court held there was no evidence in the record to support the report and notice time of driving as 2:37 a.m. As in Dawson, the court similarly found the time of the accident on the motor vehicle crash report was unsupported by the record, and although admissible, the time of driving was called into question at the administrative hearing. The court ruled, because Gallagher did not know the time of driving and Rasmussen did not testify, the Department failed to establish the test was administered .ypithin .two hours,

II

[¶7] “An appeal from a Department of Transportation .hearing officer’s decision suspending driving privileges is governed by the Administrative Agencies Practices Act.” Pavek v. Moore, 1997 ND 77, ¶ 4, 562 N.W.2d 574; see also N.D.C.C. ch. 28-32. On appeal, we review the record of the- administrative hearing officer rather than the district court. Pavek, at ¶ 4.

[¶ 8] Under N.D.C.C. § 28-32-46, an administrative agency’s decision must be affirmed unless:

1. The order is not in accordance with the law.
2. The order is not .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 fihdings of fact made by the agency do not sufficiently address •the evidence presented to the agency by the appellant. -
8.

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Cite This Page — Counsel Stack

Bluebook (online)
2017 ND 253, 902 N.W.2d 744, 2017 WL 4638667, 2017 N.D. LEXIS 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glaser-v-north-dakota-department-of-transportation-nd-2017.