Moser v. North Dakota State Highway Commissioner

369 N.W.2d 650, 1985 N.D. LEXIS 337
CourtNorth Dakota Supreme Court
DecidedJune 10, 1985
DocketCiv. 10881
StatusPublished
Cited by58 cases

This text of 369 N.W.2d 650 (Moser v. North Dakota State Highway Commissioner) 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
Moser v. North Dakota State Highway Commissioner, 369 N.W.2d 650, 1985 N.D. LEXIS 337 (N.D. 1985).

Opinions

[651]*651LEVINE, Justice.

Terry Moser (Moser) appeals from a district court judgment affirming a decision of the North Dakota State Highway Commissioner (Commissioner) to suspend Moser’s driver’s license pursuant to North Dakota Century Code Ch. 39-20. We reverse.

Moser was involved in a one-vehicle rollover accident on September 14, 1984. He was arrested for operating a motor vehicle in violation of NDCC § 39-08-011 or equivalent ordinance. Moser was administered a Breathalyzer test, which indicated a blood alcohol concentration of 0.19 percent by weight. The arresting officer took possession of Moser’s driver’s license pursuant to NDCC § 39-20-03.1.2 Moser requested and received an administrative hearing pursuant to NDCC § 39-20-05.3

At the conclusion of the administrative hearing, the Commissioner’s hearing officer made the following findings of fact, conclusions of law, and decision:

“Findings of fact are that Officer Nustad was stopped by a truck driver who re[652]*652ported he saw a pickup vehicle rolled over in a ditch, Highway 281 North. Officer Nustad went to the location. The driver was not at the scene when he arrived. Approximately 10 minutes later Mr. Moser arrived and stated he had gone for help and he had driven the vehicle. He lost control and rolled over. Officer Nustad asked the driver if he had been drinking; the driver stated that he had. Officer Nustad placed Mr. Moser under arrest for DUI. He gave the ALERT test which he failed. Mr. Moser was transported to the Jamestown Police Station. He was offered a chemical test of his breath which he submitted to. The test results showed he had .19 percent blood-alcohol concentration by weight.
“The conclusions of law, I find Officer Nustad had the grounds to believe Mr. Moser violated Section 39-08-01 of the North Dakota Century Code. I find Mr. Moser was arrested. I find Mr. Moser was tested in accordance with 39-20-01, and 39-20-02 of the North Dakota Century Code. I find Mr. Moser was fairly tested and the results showed he [had] more than .10 percent blood-alcohol concentration by weight.”

The hearing officer suspended Moser’s driving privileges for 90 days, pursuant to NDCC § 39-20-04.1.

Moser appealed to the district court, which affirmed the administrative hearing officer’s decision. Moser appealed the district court judgment and he has raised the following issues:

“I.
“Did the arresting officer have reasonable grounds to believe that Moser had been driving under the influence of intoxicating liquor?
II.
“Was Moser’s breathalyzer test ‘fairly administered’ according to the approved method promulgated by the North Dakota State Toxicologist?
“HI.
“Was Moser tested within two hours after driving as required by Section 39-20-03.1 of the North Dakota Century Code?”

An appeal from a district court judgment involving a license suspension under NDCC § 39-20-04.1 is governed by the Administrative Agencies Practice Act, NDCC Chapter 28-32, and we, therefore, look to the record compiled before the administrative agency, rather than the findings of the district court. Dodds v. North Dakota State Highway Commissioner, 354 N.W.2d 165 (N.D.1984).

“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. [Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739 (N.D.1980).] 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. [Citation omitted].” Dodds, supra, 354 N.W.2d at 168-169.

I.

Moser argues that the arresting officer did not have reasonable grounds to believe that Moser had been driving in violation of NDCC § 39-08-01. See NDCC § 39-20-05. We disagree. The term “reasonable grounds” is synonymous with the term “probable cause.” Witte v. Hjelle, 234 N.W.2d 16 (N.D.1975). We held, in Syllabus ¶ 3, in Witte v. Hjelle, supra:

“Probable cause exists when the facts and circumstances within a police officer’s knowledge and of which he had reasonably trustworthy information are [653]*653sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed.”

The arresting officer was informed by a truck driver that there was a “pickup rolled over in a ditch” on Highway 281 North in Jamestown. No one was at the accident scene when the officer arrived. When Moser arrived at the accident scene approximately ten minutes later with two other persons, he stated that he was the driver of the vehicle and admitted that he had been drinking beer and lost control of the vehicle. This evidence, coupled with the lack of any suggestion of another cause of the accident, is “sufficient to warrant a man of reasonable caution in believing” that the offense of driving in violation of NDCC § 39-08-01 had been committed. We also note that in the Officer’s Statement of Probable Cause contained in an exhibit received without objection during the administrative hearing, the arresting officer stated that he could smell alcohol on Moser’s breath and Moser’s eyes were bloodshot. The arresting officer had reasonable grounds to believe that Moser had been driving a vehicle in violation of NDCC § 39-08-01.

II.

The Breathalyzer machine involved had a “zero line” and a “start line” at which the various tests involved in a Breathalyzer test are to be started. The machine has a scale for indicating a percentage of blood alcohol. The scale begins with 0.00 percent on the left with gradations to 0.40 on the right side.

One of the tests involved in a Breathalyzer test is a “standard test.” The Breathalyzer Operational Check list and the Approved Method To Conduct Breath Test With Breathalyzer filed by the state toxicologist with the clerk of the district court pursuant to NDCC § 39-20-07, indicate that the standard test is to be begun on the “zero line.” The Approved Method states that “[a] proper result from the standard test indicates that the Breathalyzer is operating properly.” The Standard Solution Analytical Report issued by the state toxicologist on the standard ethyl alcohol solution used in the test involved here states:

“A proper result for the standard test using this solution should be in the range of 0.100% to 0.119%.

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Bluebook (online)
369 N.W.2d 650, 1985 N.D. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moser-v-north-dakota-state-highway-commissioner-nd-1985.