                 Filed 5/7/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                  2020 ND 91

Holden Thomas Kastet,                                                Appellee
      v.
Ronald Henke, Interim Director,
Department of Transportation,                                      Appellant



                                No. 20200003

Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Cherie L. Clark, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Michael T. Pitcher, Attorney General’s Office, Bismarck, ND, for appellant.

Luke T. Heck (argued) and Drew J. Hushka (appeared), Fargo, ND, for
appellee.
                             Kastet v. NDDOT
                               No. 20200003

Crothers, Justice.

[¶1] The North Dakota Department of Transportation (Department) appeals
the district court judgment reversing the hearing officer’s decision suspending
Holden Thomas Kastet’s driving privileges for 365 days. The Department
argues the hearing officer did not abuse his discretion in admitting the
chemical breath test, and State Highway Patrol Trooper King scrupulously
complied with the approved method for testing Kastet’s breath on the
Intoxilyzer 8000. We reverse the district court judgment and remand with
instructions to reinstate the hearing officer’s decision.

                                      I

[¶2] On July 6, 2019, Trooper King stopped a vehicle driven by Kastet. King
arrested Kastet for driving under the influence of alcohol, and read him the
North Dakota implied consent advisory. Kastet agreed to submit to a chemical
test and was transported to Stutsman County Correctional Center.

[¶3] At 8:10 a.m. King started the Intoxilyzer 8000 machine. Kastet
requested to speak with an attorney. King provided Kastet an opportunity to
attempt to contact his attorney by telephone and accommodated Kastet’s
request for a glass of water at 8:23 a.m. The Intoxilyzer machine continued
running the first test sequence while Kastet made telephone calls. Another law
enforcement officer entered the room and began using his computer next to the
Intoxilyzer. At 8:26 and 8:27 a.m. the Intoxilyzer detected radio frequency
interference (RFI). Kastet’s attempts to contact an attorney were unsuccessful
and King advised Kastet the two hour testing time limit was near. At 8:54 a.m.
a second test sequence was started and Kastet was tested at 8:57 and 9:03 a.m.

[¶4] Kastet argued the approved method was not followed after RFI was
detected. The hearing officer concluded the appropriate method was used to
terminate the test because it was abandoned so Kastet could call an attorney,
and not due to RFI. The hearing officer concluded, “the test was fairly
administered in accordance with Chapter 39-20 and the approved method.”

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The hearing officer explained, “In Kastet’s case, the first test was abandoned,
not because of an RFI error, but because he needed time to call an attorney. At
that point, King had the option of manually aborting the test, or simply letting
it run its course and ‘time out’ without a breath sample being collected.” The
hearing officer suspended Kastet’s driving privileges for 365 days. The district
court reversed.

[¶5] On appeal the Department argues the hearing officer did not abuse his
discretion in admitting the chemical breath test, and King scrupulously
complied with the approved method for testing Kastet’s breath on the
Intoxilyzer.

                                       II

[¶6] “The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs
the review of a decision to revoke driving privileges.” Haynes v. Dir., Dep’t of
Transp., 2014 ND 161, ¶ 6, 851 N.W.2d 172. We review the Department’s
original decision. DeForest v. N.D. Dep’t of Transp., 2018 ND 224, ¶ 5, 918
N.W.2d 43. “This Court gives deference to the agency’s findings and will not
substitute its own judgment for that of the agency.” Ebach v. N.D. Dep’t of
Transp., 2019 ND 80, ¶ 8, 924 N.W.2d 105 (citing Lee v. N.D. Dep’t of Transp.,
2004 ND 7, ¶ 9, 673 N.W.2d 245 (internal citations omitted)). “The
administrative hearing officer resolves the underlying factual disputes.” Id.
“We will only determine whether a reasoning mind reasonably could have
concluded the findings were supported by the weight of the evidence from the
entire record.” Ebach, at ¶ 8. “Questions of law are fully reviewable on appeal.”
Id. (citing Mees v. N.D. Dep’t of Transp., 2013 ND 36, ¶ 9, 827 N.W.2d 345
(internal citations omitted)). We must affirm the Department’s decision unless:

      “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 [chapter 28-32] 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.



                                       2
      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.”

N.D.C.C. § 28-32-46. The admissibility of evidence at an administrative
adjudicative proceeding generally is governed by the North Dakota Rules of
Evidence. N.D.C.C. § 28-32-24; see also Jangula v. N.D. Dep’t of Transp., 2016
ND 116, ¶ 8, 881 N.W.2d 639. A hearing officer has “broad discretion” when
making evidentiary determinations. We review a hearing officer’s evidentiary
determinations for an abuse of discretion. Id.

                                      III

[¶7] The State argues the hearing officer properly admitted the results of
Kastet’s Intoxilyzer test, and Trooper King scrupulously complied with the
approved method for testing Kastet’s breath.

[¶8] Kastet argues the district court correctly determined the hearing officer’s
decision was not in accordance with the law because the hearing officer
improperly admitted the chemical test results. Kastet further argues King
failed to scrupulously comply with the approved method when RFI is detected
and no expert testimony was provided regarding the effect of the failure to
comply with the approved method.

[¶9] “The administrative hearing officer resolves the underlying factual
disputes.” Ebach, 2019 ND 80, ¶ 8, 924 N.W.2d 105 (citing Lee, 2004 ND 7, ¶ 9,
673 N.W.2d 245). Here, the parties disagree as to why the test was terminated.
The hearing officer concluded the test was terminated “not because of an RFI
error, but because he needed time to call an attorney.” This finding of fact is
supported by a preponderance of the evidence. King testified that once they
arrived at the correctional center they began the chemical test. King stated,

                                       3
“As the test was started prior to the first subject sample . . . breath sample, Mr.
Kastet advised that he wished to speak with an attorney, specifically, I believe
he mentioned Luke Heck.” King testified he allowed Kastet the opportunity to
contact an attorney, and the test continued running while Kastet made those
calls. King testified that while Kastet was attempting to reach an attorney a
coworker at the Jamestown Police Department placed his laptop on the counter
space near the Intoxilyzer machine. At that point, the Intoxilyzer detected RFI.

[¶10] The Intoxilyzer records also support the finding that the test was
abandoned because Kastet needed time to call an attorney. The first sequence
recorded the first and second subject tests as 0.000*. “Subject samples” were
taken at 8:17 and 8:26 a.m. The 0.000 subject tests indicate deficient samples
were collected. The room air was measured at 8:14, 8:20, and 8:22 a.m. with a
reading of 0.000, and RFI was detected at 8:26 and 8:27 a.m. Therefore, the
record supports by a preponderance of the evidence that the first test sequence
terminated because Kastet requested to speak to an attorney and not due to
RFI.

[¶11] Kastet argues King failed to scrupulously comply with the approved
method when RFI was detected. The Office of Attorney General Crime
Laboratory Division issues the “Approved Method to Conduct Breath Tests
with the Intoxilyzer 8000” manual. The manual outlines the testing procedure
and how to interpret the test. Step five states:

      “‘20 Minute Wait?’ appears on display. Before proceeding, the
      operator shall ascertain that the subject has had nothing to eat,
      drink, or smoke within twenty minutes prior to the collection of the
      breath sample. Answer the question with either ‘N’ (No) or ‘Y’ (Yes)
      and press Enter. If ‘N’ is entered the instrument will not proceed.”

Under “Interpretation of the Test (B)” the manual states:

      “If any breath sample is determined to be deficient, meaning the
      subject did not provide a breath sample or did not provide an
      adequate breath sample, the instrument will print ‘*Subject Test’
      followed by ‘#.###*’ with the highest alcohol concentration



                                        4
      obtained during the test. The asterisk (*) cross-references a
      message printed below on the test record.”

Manual section (B)(2) states, “If both breath samples rendered by the subject
are deficient, the test is still valid, but with deficient breath samples. The
subject either refused or could not provide a sample. This is not an acceptable
breath alcohol result.”

[¶12] Here, the first record has an asterisk beside both subject tests which
indicate the samples were deficient. The message beside the subject test
asterisk states, “Deficient Sample–Value Printed was Highest Obtained.” The
two subject tests were taken prior to RFI being detected. Therefore, the breath
samples were deficient prior to the RFI invalidity. The manual states the test
is valid, but with deficient breath samples. The manual only provides two
reasons why the samples are deficient, stating “the subject either refused or
could not provide a sample.” There is no evidence Kastet was unable to provide
a sample. Therefore, instead of citing Kastet for refusal, King allowed Kastet
to attempt a second test.

[¶13] The second record states the first subject test was 0.103, and the second
subject test was 0.097. It also states, “Difference OK” and “No RFI Detected.”
Further, while Kastet was attempting to call an attorney he had a glass of
water. King testified at 8:23 a.m. he provided Kastet with a glass of water and
noted the time because he knew he had to wait 20 minutes to maintain the
integrity of a chemical test. Under the approved method, “the operator shall
ascertain that the subject has had nothing to eat, drink, or smoke within
twenty minutes prior to the collection of the breath sample.” That means that
the operator was required to wait until after 8:43 a.m. to perform the test. The
test sequence began at 8:54 a.m. and concluded at 9:03 a.m. Therefore, this test
was run without error or difficulty.

[¶14] The hearing officer concluded the Intoxilyzer result was admissible
because King followed the approved method. We agree. Therefore, the hearing
officer did not abuse his discretion in admitting the Intoxilyzer test results and
ultimately suspending Kastet’s driving privileges.



                                        5
                                   IV

[¶15] We reverse the district court judgment, and remand with instructions
to reinstate the hearing officer’s decision suspending Kastet’s driving
privileges for 365 days.

[¶16] Daniel J. Crothers
      Gerald W. VandeWalle
      Jon J. Jensen, C.J.
      Jerod E. Tufte
      Lisa Fair McEvers




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