Koenig v. North Dakota Department of Transportation

2005 ND 95, 696 N.W.2d 534, 2005 N.D. LEXIS 101, 2005 WL 1152455
CourtNorth Dakota Supreme Court
DecidedMay 17, 2005
Docket20040351
StatusPublished
Cited by6 cases

This text of 2005 ND 95 (Koenig 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
Koenig v. North Dakota Department of Transportation, 2005 ND 95, 696 N.W.2d 534, 2005 N.D. LEXIS 101, 2005 WL 1152455 (N.D. 2005).

Opinion

*535 MARING, Justice.

[¶ 1] The North Dakota Department of Transportation (“Department”) appeals from a district court judgment reversing its administrative suspension of Kevin Koenig’s driving privileges for ninety-one days. We reverse the district court’s judgment and reinstate the Department’s decision.

I

[¶2] At approximately 12:30 a.m. on March 14, 2004, North Dakota Highway. Patrol Officer Eric Pederson observed Koenig operating a vehicle without its headlights on. After initiating a traffic stop of the vehicle, Officer Pederson suspected Koenig was driving under the influence of alcohol and administered several field sobriety tests. After failing the tests, Koenig was placed under arrest and transported to the Stutsman County Corrections Center where he submitted to Intoxi-lyzer testing.

[¶ 3] After providing the first of two breath samples necessary to produce a final test result using the Intoxilyzer machine, Koenig put chewing tobacco in his mouth, making it impossible to obtain an accurate reading on the second required breath sample. Officer Pederson testified he did not think Koenig used the chewing tobacco to intentionally interfere with the test results. Officer Pederson then had Koenig remove the tobacco from his mouth. Officer Pederson began a twenty-minute waiting period, which is necessary under the approved method for this particular model Intoxilyzer, if the test subject has had anything “to eat, drink, or smoke.” Officer Pederson testified, “[w]e didn’t do a second subject test because the test wasn’t validated do [sic] to the fact he put chewing tobacco in. Then which actually turned out to be kind of fortunate because when I got done it wouldn’t print out. Somebody had messed with the printer. So got the printer working again.” Consequently, a record of the results of this first incomplete Intoxilyzer .test was not printed; therefore, documentation relating to the results of this test was not forwarded to the Department.

[¶ 4] After ascertaining the twenty-minute waiting period, a second Intoxilyzer test, composed of the required two breath samples, was administered and successfully printed, This test established Koenig’s blood-alcohol concentration at .16 percent of body weight. Officer Pederson made notations regarding the problems with the first test on both the printout of the second 'test results and on the test record checklist associated with the second test. He then forwarded the documentation to the Department. When asked how he fixed the printer between the administration of the first and second Intoxilyzer tests, Officer Pederson testified he “just pulled a print cartridge out, pulled all of the paper out, put everything back in, and put it in and it was the green light quit flashing and it came on.... It was nothing internal to the Intoxilyzer.” Officer Ped-erson further testified, “I could not get the test record to print out because it timed itself out.” Based on this evidence, the Department suspended Koenig’s driver’s license.

[¶ 5] Koenig appealed the Department’s decision to the district court, arguing that because the officer failed to forward a record of the first Intoxilyzer test results to the Department, the Department did not have jurisdiction under N.D.C.C. § 39-20-03.1(3), which requires the law enforcement officer to forward to the director test records for “all tests” administered. The district court agreed with Koenig and reversed the Department’s suspension of his license.

*536 [¶ 6] The Department appeals the judgment, arguing the district court erred in requiring the officer to forward results of the first incomplete Intoxilyzer test because the results were invalid due to Koe-nig’s use of chewing tobacco and were not printed due to a printer malfunction.

II

[¶ 7] Judicial review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Larsen v. North Dakota Dep’t of Transp., 2005 ND 51, ¶ 4, 693 N.W.2d 39. Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

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.

[¶ 8] On an appeal from a. district court’s ruling on an administrative appeal, our Court reviews the agency’s order in the same manner. N.D.C.C. § 28-32-49; Larsen, 2005 ND 51, ¶ 4, 693 N.W.2d 39.

' [2,3] [¶ 9] The interpretation of a statute is a question of law, which is fully reviewable on appeal. Johnson v. North Dakota Dep’t of Transp., 2004 ND 148, ¶ 5, 683 N.W.2d 886. When an appeal involves the interpretation of a statute, our Court will affirm the agency’s order unless it finds the order is not in accordance with the law. Id.

Ill

[¶ 10] The sole issue presented on appeal is whether the Department lacked the jurisdiction necessary to suspend Koe-nig’s driver’s license because the arresting officer did not forward “all tests” administered as required under N.D.C.C. § 39-20-03.1(3). Section 39-20-03.1(3), N.D.C.C., provides:

In addition to the operator’s license and report, the law enforcement officer shall forward to the director a certified .copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for blood, saliva, or urine test for all tests administered at the direction of the officer.

[¶ 11] In Bosch v. Moore, 517 N.W.2d 412, 413 (N.D.1994), our Court stated, in pertinent part:

Section 39-20-03.1(3) requires the officer to forward the test records for “all tests” conducted at the officer’s direction, regardless of whether the officer judges the results to be invalid. We have said that an administrative agency must follow the basic mandatory provisions of the statute. The statute’s command that all tests be forwarded to DOT is basic and mandatory. It precludes *537

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Bluebook (online)
2005 ND 95, 696 N.W.2d 534, 2005 N.D. LEXIS 101, 2005 WL 1152455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koenig-v-north-dakota-department-of-transportation-nd-2005.