FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 31, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 66
Bruce Van Arnold Beck, Appellee
v.
Director, North Dakota Department of Transportation, Appellant
No. 20210312
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Michael R. Hoffman, Bismarck, ND, for appellee; submitted on brief.
Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for appellant;
submitted on brief.
Beck v. NDDOT
No. 20210312
Jensen, Chief Justice.
[¶1] The North Dakota Department of Transportation appeals from a district
court judgment reversing an administrative decision to suspend Bruce Van
Arnold Beck’s driving privileges. The district court found the Department had
failed to establish Beck’s blood alcohol concentration was tested within two
hours of his prior driving or actual physical control of his vehicle. We affirm.
I
[¶2] Beck was arrested in April 2021 for driving under the influence. After
receiving the Report and Notice form indicating the Department’s intent to
suspend his driving privileges, Beck requested an administrative hearing with
the Department.
[¶3] At the administrative hearing, a Mandan Police officer testified that at
about 3:12 a.m. he was dispatched to locate a “truck” that had been in an
accident. Dispatch had received two calls regarding the accident. The first
caller reported seeing “a truck with its hazard lights on and they want to check
on.” A second caller advised dispatch “the truck was a red pickup truck.”
Officers were dispatched to locate the red pickup truck. Before locating the red
pickup truck the officers located a parked semi-truck with damage indicating
it may have been hit by another vehicle.
[¶4] Subsequent to the Mandan Police officers observing the damaged semi-truck, a Morton County Deputy Sheriff reported locating the red pickup truck
described in the dispatch calls parked at another location. When the Mandan
Police officer arrived at the location of the pickup, the officer observed the
driver’s side door was open and an individual later identified as Beck was
seated in the driver’s seat. The pickup’s air bags had been deployed and Beck
had an injury on his face. Following additional observations and field sobriety
testing, Beck was placed under arrest for driving while under the influence of
alcohol.
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[¶5] The Mandan Police officer prepared the Report and Notice form, while
the Morton County deputy prepared the motor vehicle crash report. The crash
report listed the time of the crash as 3:00 a.m. and the time the police were
notified as 3:12 a.m. It also listed Beck as the driver and contained a
description of the accident. The Report and Notice form noted the time of
“driving/physical control/crash” as 3:12 a.m. Beck’s attorney objected to the
crash report and the Report and Notice form on hearsay and foundation
grounds, argued the time of Beck’s driving had not been proven, and asserted
the chemical test was not performed within two hours of driving as required
by N.D.C.C. § 39-08-01(1)(a).
[¶6] The hearing officer concluded that while the record contained conflicting
times of driving, the “greater weight of the record shows that the test was
completed within two hours of the time Mr. Beck was driving or in actual
physical control of a motor vehicle.” The hearing officer found:
At 3:12 a.m. Mandan police were notified of a vehicle crash. It was
reported that the striking party had left the location. A vehicle
description was given. [The Mandan officer] was responding to the
location of the crash, when a notification was given that a Morton
County Deputy had located a vehicle matching the description and
a second address was given. [The Mandan officer] responded to
that location and observed a vehicle matching the description,
which appeared to have front end damage, consistent with the
crash report. [The Mandan officer] observed an individual sitting
in the driver’s seat of the vehicle at 3:41a.m. [The Mandan officer]
observed that the airbags in the vehicle had deployed and the
driver, later identified as Mr. Bruce Beck had injuries to his face,
consistent with the reported crash.
[¶7] Based on those findings the hearing officer concluded Beck was properly
arrested for driving under the influence of alcohol, he was tested in accordance
with N.D.C.C. § 39-08-01, and that the test results showed Beck had an alcohol
concentration over the legal limit. In reaching these conclusions, the hearing
officer noted:
The record does show conflicting times of driving. The crash report
shows the time of crash as 3:00a.m. The report and notice shows
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that the time of driving was 3:12a.m. And [the Mandan officer]
stated that he first observed Mr. Beck in the drivers (sic) seat of
the vehicle at 3:45a.m. The test in this matter was completed at
4:21a.m. Two hours prior to that would have been 2:21a.m. (sic) a
time prior to all of the times established in the record. Thus even
if the time of driving was at the earlies (sic) time, the testing would
have been completed within two hours. The greater weight of the
record shows that the test was completed within two hours of the
time Mr. Beck was driving or in actual physical control of a motor
vehicle.
[¶8] Beck appealed to the district court. The district court reversed the
hearing officer and ordered the reinstatement of Beck’s driving privileges. The
court concluded there was insufficient evidence to establish the chemical test
was administered within two hours of the time Beck was driving. The court
found that 3:12 a.m. was only the arresting officer’s “best guess” of the driving
time, and there was no information in the second officer’s crash report to
establish the 3:00 a.m. time of the accident. The court concluded that the
hearing officer’s findings depended on assumptions without evidentiary
support, and a reasoning mind could not have reasonably concluded the time
of driving under the facts. The Department appeals, arguing the greater weight
of the evidence establishes the time Beck was tested within two hours following
his driving.
II
[¶9] “An appeal from a Department of Transportation hearing officer’s
decision suspending driving privileges is governed by the Administrative
Agencies Practices Act.” Glaser v. N.D. Dep’t of Transp., 2017 ND 253, ¶ 7,
902
N.W.2d 744 (quoting Pavek v. Moore,
1997 ND 77, ¶ 4,
562 N.W.2d 574). This
Court reviews “the record of the administrative hearing officer rather than the
district court.” Glaser, at ¶ 7 (citing Pavek, at ¶ 4). 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 in violation of the constitutional rights of the
appellant.
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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.
[¶10] In Glaser, we explained:
It is well established that we must afford “great deference” to the
factual determinations made by an agency when reviewing the
agency’s findings of fact. Rather than making independent
findings of fact, or substituting our judgment for that of the agency,
our review is confined to determining “‘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.’” Although this Court’s review is limited to the record
before the administrative agency, “the district court’s analysis is
entitled to respect if its reasoning is sound.”
2017 ND 253, ¶ 9 (quoting Deeth v. Dir., N.D. Dep’t of Transp.,
2014 ND 232,
¶ 10,
857 N.W.2d 86).
A
[¶11] The Department argues the evidence is sufficient to establish Beck’s
chemical test was administered within two hours after he had been driving or
was in actual physical control of his vehicle. Section 39-08-01(1)(a), N.D.C.C.,
provides as follows:
1. A person may not drive or be in actual physical control of any
vehicle upon a highway or upon public or private areas to
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which the public has a right of access for vehicular use in
this state if any of the following apply:
a. That person has an alcohol concentration of at least
eight one-hundredths of one percent by weight at the
time of the performance of a chemical test within two
hours after the driving or being in actual physical
control of a vehicle.
[¶12] Section 39-20-04.1(1), N.D.C.C., authorizes the Department to suspend
a person’s operator’s license, if the findings, conclusion, and decision from an
administrative license suspension hearing confirm that the “test results show
that the arrested person was driving or in physical control of a vehicle while
having an alcohol concentration of at least eight one-hundredths of one percent
by weight.” “In order to rely upon the chemical test results, the test must have
been performed within two hours of either driving or actual physical control.”
Knudson v. Dir., N.D. Dep’t of Transp., 530 N.W.2d 313, 318 (N.D. 1995) (citing
reference omitted).
[¶13] At an administrative hearing, a report and notice form is prima facie
evidence of its contents, including the time of driving. Glaser,
2017 ND 253, ¶
11 (citing Dawson v. N.D. Dep’t of Transp.,
2013 ND 62, ¶ 23,
830 N.W.2d 221).
The report and notice, combined with the officer’s testimony at the hearing,
may be sufficient for the hearing officer to find the time of driving. Glaser, at
¶11 (citing Pavek,
1997 ND 77, ¶ 8). “However, the time of driving may be
placed into question at the administrative hearing.” Glaser, at ¶ 11 (citing
Pavek, at ¶ 9). We noted in Glaser that one way to put the time of driving into
question is by cross-examining the testifying officer. Glaser, at ¶ 11.
[¶14] The Department offered into evidence the Report and Notice and crash
report providing prima facie evidence Beck was driving at either 3:00 a.m. or
3:12 a.m. The hearing officer accepted the Report and Notice and crash report
as evidence. Beck cross-examined the testifying officer, established the officers
had not personally observed the driving, and put the time of driving into
question at the administrative hearing. Accordingly, while the report and
notice form included prima facie evidence of the time of driving, we conclude
Beck successfully rebutted the evidence and the burden was the Department’s
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to establish the chemical testing occurred within two hours of the time of
driving.
B
[¶15] The Department argues the evidence supports a finding that Beck was
driving within two hours of the chemical test as required by N.D.C.C. § 39-08-
01(1)(a) as he fled the scene and continued to drive until it was located later.
Beck argues the district court properly reversed the administrative hearing
officer’s decision.
[¶16] The arresting officer testified that at approximately 3:12 a.m. there was
a dispatch call reporting “a truck with its hazard lights on and they want to
check on.” He also testified there was “a second caller that had advised
dispatch which had informed us that the truck was a red pickup truck.”
Following the two dispatch calls a semi-truck with damage consistent with
having been struck by another vehicle was located. Beck’s vehicle was
subsequently located away from the semi-truck accident scene, based on the
information provided by the callers. When located, Beck’s pickup had damage
consistent with striking another vehicle, the air bags had deployed, Beck had
an injury to his face, and Beck was in the driver’s seat of the vehicle. While it
was reasonable for the hearing officer to conclude Beck had been driving, the
hearing officer was also required to find the Department had proven the
chemical test had been taken within two hours of Beck driving.
[¶17] The hearing officer made the following finding: “It was reported that the
striking party had left the location.” This finding is critical to supporting the
hearing officer’s subsequent finding the Department had established the time
of driving. Had the caller(s) reported a red pickup truck with its hazard lights
leaving the scene of the accident, a reasonable inference could be drawn the
call(s) were made contemporaneous with the accident. However, the evidence
during the administrative hearing does not tie the callers’ observations to
witnessing the accident, but instead were observations of Beck’s parked vehicle
independent of any driving or collision with the semi-truck. What is absent
from the evidence provided at the administrative hearing is evidence of when
Beck was driving. Even if we assume Beck was driving, and while driving he
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struck the semi-truck, no evidence was offered regarding when the semi-truck
had been hit or when Beck’s vehicle came to a stop at the location it was
discovered by the Morton County deputy. The record only includes references
to telephone calls describing Beck’s vehicle without any indication that it was
moving.
[¶18] We must afford “great deference” to the factual determinations made by
an agency when reviewing the agency’s findings of fact. Our review is confined
to determining whether a reasoning mind reasonably could have determined
that the factual conclusions reached were proven by the weight of the evidence
from the entire record. We conclude a reasoning mind could not have
reasonably found the Department had met its burden of proving the chemical
test was administered within two hours of the time of the driving.
III
[¶19] There was insufficient evidence for a reasoning mind to reasonably
conclude Beck was driving within two hours of the chemical test. We
accordingly affirm the decision of the district court.
[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
I concur in the result.
Daniel J. Crothers
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