                Filed 12/12/19 by Clerk of Supreme Court

                     IN THE SUPREME COURT
                     STATE OF N OR TH DAK OT A


                                2019 ND 293


Brandon Wade Lindstrom,                                            Appellant



      v.



North Dakota Department of Transportation,                          Appellee




                                No. 20190204


Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Thomas J. Schneider, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Danny L. Herbel, Bismarck, ND, for appellant.
Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for appellee.
               Lindstrom v. N.D. Dep’t of Transportation
                               No. 20190204

Crothers, Justice.

[¶1] Brandon Wade Lindstrom appeals the district court judgment affirming
the hearing officer’s decision to suspend Lindstrom’s license for 180 days. We
affirm.

                                      I

[¶2] On January 28, 2019, Lindstrom was arrested for driving under the
influence and given a chemical breath test which showed he was over the legal
limit for driving. Lindstrom requested an adminstrative hearing. The hearing
officer found the Highway Patrol Trooper had reasonable grounds to believe
Lindstrom was driving a vehicle while under the influence of intoxicating
liquor, and the Trooper who stopped Lindstrom forwarded the report and
notice form and test results to the Department of Transportation by placing
them in the mail in an in-house mailing bin on January 29, 2019. The hearing
officer suspended Lindstrom’s driving priviledges for 180 days. Lindstrom
appealed to the district court which affirmed the hearing officer’s decision.
Lindstrom appeals.

                                      II

[¶3] “The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs
our review of an administrative decision suspending or revoking a driver’s
license.” Crawford v. Director, N.D. Dep’t of Transp., 2017 ND 103, ¶ 3, 893
N.W.2d 770. Under N.D.C.C. § 28-32-49, we review an appeal from a district
court judgment in an administrative appeal in the same manner as provided


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under N.D.C.C. § 28-32-46, which requires a district court to affirm an agency
order unless it finds any of the following:

      “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.”

N.D.C.C. § 28-32-46.

[¶4] “On review, we determine only whether the findings of fact are supported
by a preponderance of the evidence, whether the conclusions of law are
sustained by the findings of fact, and whether the agency decision is supported
by the conclusions of law.” Johnson v. N.D. Dep’t of Transp., 530 N.W.2d 359,
360 (N.D. 1995). In determining whether an agency’s findings of fact are
supported by a preponderance of the evidence “[w]e determine only 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.”
Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979). A reviewing court
must give deference to the hearing officer’s findings of fact and may not make




                                        2
independent findings or substitute its judgment for that of the Department.
Henderson v. Dir., N.D. Dep’t of Transp., 2002 ND 44, ¶ 6, 640 N.W.2d 714.

                                       III

[¶5]   Lindstrom argues the report and notice was not forwarded to the
Department within five days as required by law. Instead, Lindstrom claims the
Trooper placed the report and notice in an in-house mail bin on January 29,
2019, and an envelope postmark shows it was sent seven days later to the
Department on February 4, 2019.

[¶6] The State argues the report and notice was forwarded within five days
by placing it in the Highway Patrol’s in-house mail receptacle/drop box on
January 29, 2019.

[¶7] Under N.D.C.C. § 39-20-03.1, the following procedure applies when a
driver is charged with having an alcohol concentration of at least eight one-
hundredths of one percent by weight:

       “4. The law enforcement officer, within five days of the issuance of
       the temporary operator’s permit, shall forward to the director a
       certified written report in the form required by the director.”

Here, Lindstrom was issued a temporary operator’s permit on January 28,
2019. The hearing officer found, “Trooper Mayer stated he placed the
documents in an envelope addressed to the Department and placed them into
the mail on January 29, 2019. Therefore[,] the greater weight of the evidence
shows that that [SIC] [the] report and notice and test results were properly
forwarded to the director within five days of the issuance of the temporary
operators permit as is required.” The district court affirmed the hearing




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officer’s decision suspending appellant’s driving privileges for a period of 180
days. We affirm.

                                         A

[¶8] We addressed the definition of the word “forward” in Nelson v. Director,
North Dakota Dept. of Transp., 1997 ND 81, ¶ 14, 562 N.W.2d 562. “To
‘forward’ means ‘to send forward; to send toward the place of destination; to
transmit.’” Id. (citing Black’s Law Dictionary 655 (6th ed. 1990)). “It does not
require the report and notice form be ‘received’ within five days.” Id. “A
requirement to ‘forward’ is met by placing the papers in the mail.” Id. (citing
Travelers Indem. Co. v. Rosedale Passenger Lines, Inc., 311 F.Supp. 993, 1000
(D.C.Md.1970), rev’d on other grounds, 450 F.2d 975 (4th Cir. 1971)). Section
39-01-01(39), N.D.C.C., defines “mail” as, “means to deposit mail properly
addressed and with postage prepaid with the United States postal service.”

[¶9] The hearing officer found, “Trooper Mayer stated he placed the
documents in an envelope addressed to the Department and placed them into
the mail on January 29, 2019.” “A hearing officer is not precluded from drawing
inferences from the evidence presented, based on common sense and
experiences.” Nelson, 562 N.W.2d at ¶ 11 (citing Axtman v. Moore, 534 N.W.2d
802 (N.D. 1995)). Here, the hearing officer stated, “the date an item is placed
in the mail is not always the date that [it] is postmarked. For illustrative
purposes only for example, the Department has a blue postal box into which
you could place an item on Friday afternoon and the earliest it would be
collected and postmarked would be the next Monday, a full three days after the
envelope had been placed in the mail.”




                                       4
[¶10] The record supports the hearing officer’s decision that the report and
notice was placed in the mail when the Trooper placed it in the in-house
mailing bin. The Trooper testified:

      “MS. HUBER: Did you forward that Report and Notice to the
      Department of Transportation?

      TROOPER MAYER: Yes.

      MS. HUBER: Did you forward it?

      TROOPER MAYER: Yes, I did.

      MS. HUBER: Do you recall how it was forwarded to the
      department?

      TROOPER MAYER: It was forwarded by in-house mail through
      the highway patrol’s US Postal Service.

      MS. HUBER: Can you walk me through how that works?

      TROOPER MAYER: It is put in a drop box and then picked up, I’m
      assuming by a post office, postal person.

      MS. HUBER: Do you recall when you placed it in the mailbox?

      TROOPER MAYER: I believe it was the following day. The 29th.
      Yes, I believe it was the 29th of January.”

On cross-examination the Trooper was asked:

      “MR. HERBEL: Okay. And your testimony is that you placed the
      Report and Notice form in a drop box in house; is that right?

      TROOPER MAYER: That’s fair.

      Mr. HERBEL: So, you, yourself, did not . . . and you were the one
      . . . you, yourself, did not take it to the post office; correct?

      TROOPER MAYER: No, I did not.

      MR. HERBEL: Didn’t mail it any government mailbox; correct?

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      TROOPER MAYER: Correct.

      MR. HERBEL: You . . .

      TROOPER MAYER: I can’t testify if the post office picks up
      directly from the drop box or how that works.”

Because the Trooper testified he deposited the report and notice in an in-house
mail bin on January 29, 2019, and the hearing officer relied on her common
sense and experiences of how in house mailing bins operate, the hearing officer
could have reasonably found the report and notice were mailed on January 29,
2019, and therefore were forwarded to the Department on the same day.

                                      IV

[¶11] We affirm the district court judgment affirming the hearing officer’s
decision to suspend Lindstrom’s driving privileges for 180 days.

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




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