Brewer v. Ziegler

20070152 Nancy Juanita Brewer, Petitioner and Appellant
v.
Francis G. Ziegler, Director,
Department of Transportation, Respondent and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Georgia Dawson
Nature of Action: Transportation Dept.
Counsel:
Appellant: Vogel Law Firm
Appellee: Andrew Moraghan , Att. General Office
Appellee: Michael Trent Pitcher , Att. General Office
Term: 10/2007   Argument: 10/22/2007  2:45pm
ND cite: 2007 ND 207
NW cite: 743 N.W.2d 391

Listen to recording of oral argument in MP3 format
Listen to recording of oral argument in RM format
using RealPlayer Basic,© a free download.

Issues: Appellant's Statement of the Issues:
I.The seizure and arrest were unlawful
A. The arresting officer lacked seizure and arrest authority
B.The Appellant was unlawfully seized
II. The Department of Transportation lacked jurisdiction
III. The Hearing Officer erred in admission of evidence
A. Consideration of the preliminary breath test was unlawful
B. The horizontal gaze test should not have been considered
C. Consideration of unwarned custodial statements was unlawful
D. The admissible evidence was insufficient to support the Hearing Officer's conclusions

Reply Brief Issues
I. The seizure and arrest were unlawful
A.The arresting officer lacked seizure and arrest authority
B. The Appellant was unlawfully seized
II. The Department of Transportation lacked jurisdiction
III.The Hearing Officer erred in admission of evidence
A. Consideration of the preliminary breath test was unlawful
B. The horizontal gaze test should not have been considered
C. Consideration of unwarned custodial statements was unlawful
D. The admissible evidence was insufficient to support the Hearing Officer's conclusions

Appellee's Statement of the Issues:
North Dakota Highway Patrol Trooper Robert Arman ("Trooper Arman") observed Nancy Brewer's ("Brewer") vehicle stopped in a parking lot/field; Brewer's husband was seated in the passenger seat leaning out of the vehicle's opened door. The trooper stopped to see if everything was okay. Trooper Arman, in his caretaking role, made observations leading him to believe Brewer might be intoxicated. The trooper properly tested Brewer and established probable cause existed to arrest Brewer under the highway patrol's statutory directive to enforce drunk driving laws. An Intoxilyzer test established Brewer was legally intoxicated. Was Trooper Arman within his authority to investigate, and ultimately arrest, Brewer for actual physical control ("APC") of a vehicle while under the influence of alcohol?
Trooper Arman forwarded a completed report and notice form to the Department. The form must contain an adequate statement of probable cause to arrest in order for the Department to attain the authority to suspend driving privileges. The probable cause statement in this case sufficiently met this jurisdictional requirement. Did the Department have the authority to suspend Brewer's driving privileges?
Finally, Brewer alleges the administrative hearing officer should not have considered evidence of Brewer's failed horizontal gaze nystagmus test or her failure of a preliminary breath test. Brewer also alleges the hearing officer should not have considered statements made by Brewer to Trooper Arman. Was it proper for the hearing officer to consider this evidence?

Add Docket 20070152 RSS Add Docket 20070152 RSS

Docket entries:
105/31/2007 NOTICE OF APPEAL: 05/30/2007
205/31/2007 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
306/05/2007 DISK - TRA (11-11-06 and 11-11-06 corrected) (e-mailed)
406/25/2007 APPELLANT BRIEF
506/25/2007 APPELLANT APPENDIX
606/26/2007 DISK - ATB
707/02/2007 RECORD ON APPEAL, Transcript of Administrative Hearing dated 11-11-06 (Entry #8) & corrected
807/02/2007 Transcript of Admnistrative Hearing dated 11-11-06 (Entry #10)
907/20/2007 Corrected page 56 of ATA
1007/26/2007 APPELLEE BRIEF
1107/26/2007 Affidavit of Service by Mail dated 7-26-07 mailing AEB to opposing counsel
1207/26/2007 DISK - AEB (E-mailed)
1308/07/2007 REPLY BRIEF of Appellant
1408/08/2007 DISK - ryb
1508/17/2007 Notice of Appearance
1609/20/2007 SITTING WITH THE COURT: Foughty, Donovan John
1710/22/2007 APPEARANCES: Mark A. Friese, Timothy Q. Purdon; Andrew Moraghan, Michael T. Pitcher
1810/22/2007 ARGUED: Friese; Moraghan
1910/22/2007 ORAL ARGUMENT WEBCAST
2012/20/2007 DISPOSITION: AFFIRMED
2112/20/2007 UNANIMOUS OPINION: Crothers, Daniel John
2212/20/2007 Costs on appeal taxed in favor of Appellee under Rule 39, N.D.R.App.P.
2312/20/2007 Judgment Mailed to Parties
2401/11/2008 MANDATE
2501/15/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 07/22/2014