STATE OF NORTH DAKOTA IN DISTRICT COURT

COUNTY OF STUTSMAN SOUTHEAST JUDICIAL DISTRICT

Larry William Hewitt, )

)
Appellant, ) APPELLEE’S BRIEF
)
vs. )
)
Ronald Henke, Interim Director, ) Civil No. 47-2019-CV-00296
Department of Transportation, )
)
Appellee. )
)

INTRODUCTION

[¶1] This matter represents an appeal from an administrative decision rendered

pursuant to N.D.C.C. § 39-20-05 suspending the driving privileges of Larry William Hewitt

(“Hewitt”) for a period of two years. The appeal was taken in accordance with N.D.C.C.

§ 39-20-06.

STATEMENT OF ISSUES

[¶2] Whether Sgt. Herzig had a reasonable and articulable suspicion to stop Hewitt’s

vehicle.

[¶3] Whether Hewitt’s rights of due process were violated by the admission of Exhibit

1.1 and Exhibit 1.2.

[¶4] Whether the hearing officer acted within his discretion in admitting Hewitt’s Report

and Notice under Rule 901(b)(1), N.D.R.Ev., and Exhibit 1.2 under Rule 902(4)(A),

N.D.R.Ev.

[¶5] Whether the revocation of Hewitt’s driving privileges is barred by the doctrine of

equitable estoppel.

[¶6] Whether the Department engaged in a persistent pattern of improper agency

conduct so as to deny Hewitt a fair hearing and warrant the reversal of the revocation of

Hewitt’s driving privileges.

[¶7] Whether Hewitt is entitled to an award of attorney fees and costs under N.D.C.C.
§ 28-32-50(1) in the event the hearing officer’s decision is not affirmed by the district court.

STATEMENT OF CASE

[¶8] North Dakota Highway Patrol Sergeant Thomas Herzig (“Sgt. Herzig”) arrested

Hewitt on April 14, 2019, for the offense of driving while under the influence of intoxicating

liquor. Transcript (“Tr.”) at Ex. 1.2 – Page 2 of 5. After the conclusion of the May 9, 2019,

administrative hearing, the hearing officer issued his findings of fact, conclusions of law,

and decision revoking Hewitt’s driving privileges for a period of two years. Id. at Hearing

Officer’s Decision. Hewitt requested judicial review of the hearing officer’s decision.

STATEMENT OF FACTS

[¶9] On April 14, 2019, at 1:53 a.m., Sgt. Herzig observed a vehicle that was being

operated by Hewitt make a turn which the law enforcement officer described as being a

“bit wide.” Id. at 4, l. 25 – 5, l. 15. Sgt. Herzig testified “[t]he vehicle turned and instead

of following a route that a typical vehicle would follow, this one created a little bit more

distance between my car and his car. Again, not off the driving lane by any means, just

a bit unusual and enough to cause suspicion and enough for me to turn around then.” Id.

at 6, ll. 5-9.

[¶10] Sgt. Herzig stated that after he turned and followed Hewitt’s vehicle, he observed

“the vehicle was weaving within its lane, not crossing the center line, not crossing … well,

there is no fog line, but not bumping the curb.” Id. at 6, ll. 21-25. Sgt. Herzig explained

that “where typical travel goes there isn’t dust that’s raised from … at loose sediment

along the curb edge. This one here was closer to the curb to where it raised dust. Again,

not hitting the curb. But building my suspicion.” Id. at 6, l. 25 – 7, l. 4. Sgt. Herzig stated

he continued to follow Hewitt’s vehicle and after the vehicle “turned west there is a fog

line there and it drove onto the fog line, failing to maintain its lane. Shortly thereafter, I

activated top lights for a traffic stop.” Id. at 7, ll. 6-10. Sgt. Herzig explained “[t]he fact is

he’s not within his lane and there’s true violation to trip the red lights.” Id. at 28, ll. 18-19.

[¶11] After observing indicia of Hewitt’s intoxication and administering field sobriety

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tests, which indicated Hewitt was under the influence of alcohol, Sgt. Herzig placed Hewitt

under arrest for the offense of driving while under the influence of intoxicating liquor. Id.

at 9, l. 17 – 13, l. 23. After transporting Hewitt to the Stutsman County Correctional Center

and informing him of the implied consent advisory, Sgt. Herzig requested Hewitt submit

to an Intoxilyzer test, however, Hewitt refused the test. Id. at 14, ll. 5-15. Sgt. Herzig

testified he informed Hewitt that:

I must inform you that North Dakota law requires you take a chemical breath
test to determine whether you are under the influence of alcohol or drugs.
And that refusal to submit to a test as directed by a law enforcement officer
may result in a revocation of your driving privileges for a minimum of 180
days and up to three years. I must inform you a refusal to take a breath test
is a crime punishable in the same manner as driving under the influence.
Do you consent to taking the test?

Id. at 32, ll. 9-21. Sgt. Herzig testified “[a]nd the driver without hesitation said no.” Id. at

32, l. 21.

STANDARD OF REVIEW

[¶12] “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. The Court must affirm an administrative agency’s order unless one

of the following is present:

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.

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 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.

[¶13] “In an appeal from a district court’s review of an administrative agency’s decision,

[the Court] reviews the agency’s decision.” Haynes, 2014 ND 161, ¶ 6, 851 N.W.2d 172.

The Court “do[es] not make independent findings of fact or substitute [its] judgment for

that of the agency; instead, [it] determine[s] whether a reasoning mind reasonably could

have concluded the findings were supported by the weight of the evidence from the entire

record.” Johnson v. N.D. Dep’t of Transp., 530 N.W.2d 359, 361 (N.D. 1995). “This

standard defers to the hearing officer’s opportunity to hear the witnesses’ testimony and

to judge their credibility and [the court] will not disturb the agency’s findings unless they

are against the greater weight of the evidence.” Id. “The mere fact that the appellate

court might have viewed the facts differently had it been the initial trier of the case does

not entitle it to reverse the lower court.” Herb Hill Ins., Inc. v. Radtke, 380 N.W.2d 651,

653 (N.D. 1986).

LAW AND ARGUMENT

I. Sgt. Herzig had a reasonable and articulable suspicion to stop Hewitt’s

vehicle.

[¶14] “Unreasonable search and seizures are prohibited by the Fourth Amendment of

the United States Constitution, applicable to the states through the Fourteenth

Amendment, and by Article I, § 8 of the North Dakota Constitution.” State v. Fasteen,

2007 ND 162, ¶ 6, 740 N.W.2d 60. “Under the doctrine announced by the United States

Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police

may, in appropriate circumstances, detain an individual for investigative purposes when

there is no probable cause to make an arrest if the police have a reasonable and

articulable suspicion that criminal activity is afoot.” Id.

[¶15] “For a valid investigative stop of a vehicle under the Terry doctrine, an officer must

4
have a reasonable and articulable suspicion the motorist has violated or is violating the

law.” Id. “Probable cause to believe a motorist has violated a traffic law renders the stop

reasonable and the evidence obtained from the stop admissible.” Id.

[¶16] “In determining whether an investigative stop is valid, [the Court] use[s] an

objective standard and look[s] to the totality of the circumstances.” State v. Parizek, 2004

ND 78, ¶ 9, 678 N.W.2d 154. “The question is whether a reasonable person in the officer’s

position would be justified by some objective manifestation to suspect the defendant was,

or was about to be, engaged in unlawful activity.” Id. “The trier of fact must use an

objective standard and determine whether or not a reasonable person in the officer’s

position would be justified by some objective manifestation to suspect the defendant was,

or was about to be, engaged in criminal activity.” Zimmerman v. N.D. Dep’t of Transp.,

543 N.W.2d 479, 481 (N.D. 1996) (citing State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.

1992)).

[¶17] The Court has explained “[w]e do not require an officer to isolate single factors

which signal a potential violation of the law; but instead, “officers are to assess the

situation as it unfolds and, based upon inferences and deductions drawn from their

experience and training, make the determination whether all of the circumstances viewed

together create a reasonable suspicion of potential criminal activity.” City of Fargo v.

Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901 (citations omitted). “When assessing

reasonableness, [a court is to] consider inferences and deductions an investigating officer

would make which may elude a layperson.” Id.

[¶18] “The officer’s grounds for making the stop, if valid, need not ultimately result in a

conviction.” State v. Storbakken, 552 N.W.2d 78, 81 (N.D. 1996). “[A]n evaluation of

whether there was reasonable suspicion to justify the stop does not depend on whether

the grounds for the stop will ultimately result in conviction.” State v. Smith, 452 N.W.2d

86, 88 (N.D. 1990). “A mere mistake of fact will not render a stop illegal, if the objective

facts known to the officer gave rise to a reasonable suspicion that criminal activity was

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afoot.” United States v. Mariscal, 285 F.3d 1127, 1131 (9th Cir. 2002). “[A]n officer’s

correct understanding of the law, together with a good-faith error regarding the facts, can

establish reasonable suspicion.” United States v. King, 244 F.3d 737, 739 (9th Cir. 2001).

[¶19] “Traffic violations, even if pretextual, provide a lawful basis to conduct an

investigatory vehicle stop.” State v. Oliver, 2006 ND 241, ¶ 6, 724 N.W.2d 114. “A police

officer’s subjective intentions in making a stop are not important as long as a traffic

violation has occurred.” Id. “‘[T]raffic violations, even if considered common or minor,

constitute prohibited conduct and, therefore, provide officers with requisite suspicion for

conducting investigatory stops.’” State v. Fields, 2003 ND 81, ¶ 7, 662 N.W.2d 242

(quoting Storbakken, 552 N.W.2d at 80-81).

[¶20] Section 39-10-17(1), N.D.C.C., provides “[w]henever any roadway has been

divided into two or more clearly marked lanes for traffic . . . [a] vehicle must be driven as

nearly as practicable entirely within a single lane and may not be moved from such lane

until the driver has first ascertained that such movement can be made with safety.”

N.D.C.C. § 39-10-17(1). The practicable lane statute’s prohibition includes driving on --

as well as over -- lane dividing lines. See, e.g., State v. Guttormson, 2015 ND 235, ¶ 19,

869 N.W.2d 737 (the Supreme Court determined that “the jury could have reasonably

inferred that [the law enforcement officer] had reason to believe Guttormson committed a

moving traffic violation” when “[the] testimony suggested the silent squad car video

showed Guttormson, just before the stop, briefly driving on the center line in the road.”)

(citing N.D.C.C. § 39-10-17(1) (emphasis added)). Cf. United States v. Williams, 945 F.

Supp. 2d 665, 672 (E.D. Va. 2013) (“[U]nder the Code of Virginia, a lane of travel by

definition constitutes the area between the boundary lines (the fog lines) on each side of

the lane. For these reasons, a driver who drives his vehicle on the boundary lines violates

[Virginia’s practicable lane statute], regardless of whether the driver actually crosses over

the boundary lines.”); United States v. Bassols, 775 F. Supp. 2d 1293, 1296 (D.N.M.

2011) (“[T]he Court will apply a ‘bright line’ standard that a driver who drives on the line

6
or stripe dividing a lane of traffic from another lane or on the line or stripe that separates

a lane from the shoulder has failed to drive ‘as nearly as practicable entirely within a single

lane.’”); United States v. Bryson, Criminal Case No. 1:13-CR-09-ODE-GGB, 2013 WL

5739055, at *10 (N.D. Ga. Oct, 21, 2013) (“[T]he [practicable lane] statute’s requirement

that a driver stay ‘entirely within a single lane’ suggests that a driver can violate the statute

by driving on the dividing line between the lanes.”).

[¶21] In this case, Sgt. Herzig observed Hewitt operating his vehicle over a distance in

a suspicious manner by first making an unusually wide turn, then weaving with his lane

of traffic, and finally driving onto the fog line, which the law enforcement officer

characterized as “failing to maintain its lane.” Tr. at 7, ll. 6-10. Sgt. Herzig explained

“[t]he fact is he’s not within his lane and there’s true violation to trip the red lights.” Id. at

28, ll. 18-19 (emphasis added).

[¶22] Hewitt attempts to compare this case to the situation in Lawler v. Director, North

Dakota Department of Transportation, Civil No. 15-2018-CV-00052 (Hagerty, J. Apr. 30,

2019), in which the court – after having the opportunity to review the video evidence --

concluded that “observing [Lawler’s] vehicle’s tires on the fog line [for approximately four

seconds] does not amount to reasonable suspicion.” See Ex. E at ¶ 6. By contrast,

Hewitt’s suspicious driving behavior occurred over a much greater distance and period of

time from the intersection at 4th Avenue and 4th Street in Jamestown, then onto what is

referred to as “Mill Hill,” and then turning west onto 17th Street Southwest. Tr. at 5, l. 16

– 7, l. 10.

[¶23] No evidence was presented to contest Sgt. Herzig’s characterization of Hewitt’s

driving behavior. The appellate court must consider the inferences and deductions that

Sgt. Herzig made which may have eluded a layperson. Sgt. Herzig had a reasonable and

articulable suspicion to stop Hewitt’s vehicle.

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II. Hewitt’s rights of due process were not violated by the admission of Exhibit
1.1 and Exhibit 1.2.

[¶24] “Due process requires a participant in an administrative proceeding be given notice

of the general nature of the questions to be heard, and an opportunity to prepare and be

heard on those questions.” Morrell v. N.D. Dep’t of Transp., 1999 ND 140, ¶ 9, 598

N.W.2d 111, 114 (citing Saakian v. N.D. Workers Comp. Bur., 1998 ND 227, ¶ 11, 587

N.W.2d 166). “Notice is sufficient if it informs the party of the nature of the proceedings

so there is no unfair surprise.” Id. (citing Saakian, at ¶ 11). “The due process

requirements for an administrative hearing are embodied in section [28-32-21(3)(c)],

N.D.C.C.” Id.

[¶25] “The statute provides:

A hearing under this subsection may not be held unless the parties have
been properly served with a copy of the notice of hearing as well as a written
specification of issues for hearing or other document indicating the issues
to be considered and determined at the hearing. In lieu of, or in addition to,
a specification of issues or other document, an explanation about the nature
of the hearing and the issues to be considered and determined at the
hearing may be contained in the notice.

Id. (quoting renumbered N.D.C.C. § 28-32-21(3)(c)). “Basic notions of fundamental

fairness also require a person challenging an agency action be adequately informed in

advance of the questions to be addressed at the hearing so the person can be prepared

to present evidence and arguments on those questions. Id. (citing Saakian, at ¶ 11). “A

determination the administrative hearing notice was constitutionally deficient does not end

our inquiry.” Id. at ¶ 11. “Generally, there is no right to redress if a party cannot show

prejudice resulting from an allegedly defective notice.” Id.

[¶26] In this case, the Department served a Notice of Administrative Hearing on Hewitt

on April 29, 2019, which explained the issues to be determined at the administrative

hearing. At the hearing, Hewitt was advised “[t]he issues are: whether the law

enforcement officer had reasonable grounds to believe that Mr. Hewitt had been driving

or was in actual physical control of a vehicle while under the influence of intoxicating liquor

8
or any drug or substance in violation of North Dakota Century Code section 39-08-01;

whether Mr. Hewitt was placed under arrest; and whether he refused to submit to the test

or tests requested.” Tr. at 1, ll. 11-18. The statement of issues met the requirements of

N.D.C.C. § 28-32-21(3)(c)).

[¶27] Hewitt also was provided with copies of documents marked as Exhibit 1.1 and

Exhibit 1.2. The hearing officer explained the documents comprising the two exhibits

were identical except for the certification page: “For both Exhibits 1.1 and 1.2 page 2 is

the Report and Notice. Page 3 is the request for hearing from Mr. Heck. Page 4 is the

first page of Mr. Hewitt’s driving record indicating a suspension for driving with a BAC

over the legal limits for violation occurring July 15th, 2018. And page 5 is a second page

of Mr. Hewitt’s driving record.” Id. at 16, ll. 7-12.

[¶28] Hewitt alleges the use of identical documents within the two exhibits, except for

the certification page, somehow violated the specification of issues requirement of section

28-32-21(3)(c)). Yet, Hewitt cannot reasonably claim he suffered any prejudice as the

result of the virtually identical exhibits, nor that he was unable to adequately prepare for

the hearing because of existence of the two exhibits. Hewitt’s rights of due process were

not violated by the admission of Exhibit 1.1 and Exhibit 1.2.

III. The hearing officer acted within his discretion in admitting Hewitt’s Report
and Notice under Rule 901(b)(1), N.D.R.Ev., and Exhibit 1.2 under Rule
902(4)(A), N.D.R.Ev.

[¶29] “Generally, [the Court] review[s] a trial court’s evidentiary ruling under an abuse of

discretion standard.” Knudson v. Dir., N.D. Dep’t of Transp., 530 N.W.2d 313, 316 (N.D.

1995) (citing Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401 (N.D. 1994);

State v. Whalen, 520 N.W.2d 830 (N.D. 1994)). “A trial court abuses its discretion when

it acts in an arbitrary, unreasonable or capricious manner or misinterprets or misapplies

the law.” Id. (internal and external citations omitted). “The basis of this deferential review

is the wide discretion afforded to trial courts to control the introduction of evidence at trial.”

Williams Cty. Soc. Serv. Bd. v. Falcon, 367 N.W.2d 170 (N.D. 1985)). “Ordinarily, [the

9
court] do[es] not reverse an evidentiary miscue, particularly, in a nonjury case, when that

error causes no prejudice.” Madison v. N.D. Dep’t of Transp., 503 N.W.2d 243, 246 (N.D.

1993) (citing Domres v. Backes, 487 N.W.2d 605 (N.D. 1992)).

[¶30] “Generally, before documentary evidence is admissible it must be authenticated.”

Frost v. N.D. Dep’t of Transp., 487 N.W.2d 6, 8 (N.D. 1992) (citing R & D Amusement

Corp. v. Christianson, 392 N.W.2d 385, 386 (N.D. 1986)). “Authentication is simply

identification.” Id. (citing Black’s Law Dictionary 671 (5th ed. 1978)). “Identification ‘as a

condition precedent to admissibility is satisfied by evidence sufficient to support a finding

that the matter in question is what its proponent claims.’” Id. (citing N.D.R.Ev. 901(a)).

[¶31] “At a hearing under [section 39-20-05(4)], the regularly kept records of the director

and state crime laboratory may be introduced. Those records establish prima facie their

contents without further foundation.” N.D.C.C. § 39-20-05(4). “[I]n order to be admissible

as ‘regularly kept records of the director,’ a document must bear some reliable, verifiable

indicia that the document is in fact what it purports to be.” Peterson v. N.D. Dep’t of

Transp., 518 N.W.2d 690, 695 (N.D. 1994) (“The documents admitted in this case are

unsigned and uncertified; they bear no seal, letterhead, or other indication of official

capacity . . .”).

[¶32] “If the documents are not admissible as ‘regularly kept records,’ DOT must

establish their authenticity with extrinsic evidence under Rule 901, N.D.R.Evid., or as self-

authenticating documents under Rule 902, N.D.R.Evid.” Peterson, 518 N.W.2d at 695.

“Under section (a) of [N.D.R.Ev.] 901, the requirement of authentication as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims it to be.” Farmer’s Union Oil Co. of

Dickinson v. Wood, 301 N.W.2d 129, 136 (N.D. 1980).

[¶33] “Rule 901(b), N.D.R.Ev., places no limitations upon the number of methods of

proving authentication.” Id. “Rule 901(b)(1), N.D.R.Ev. . . . acknowledges that

authentication can occur through the testimony of a witness with knowledge that a matter

10
is what it is claimed to be.” Id. See, e.g., Rudolph, 539 N.W.2d 63, 66 (N.D. 1995)

(“Additional evidence was presented at the hearing concerning the authenticity of [the

Intoxilyzer test record and checklist]”).

[¶34] Under Rule 902(4)(A), N.D.R.Ev., “[a] copy of an official record, or a copy of a

document that was recorded or filed in a public office as authorized by law, if the copy is

certified as correct by . . . (A) the custodian or another person authorized to make the

certification.” N.D.R.Ev. 902(4)(A). See, e.g., State v. Obrigewitch, 356 N.W.2d 105, 108

(N.D. 1984) (determining that a “rubber-stamp certification and signature” as used for

Obrigewitch’s driving record and order of suspension “[was] sufficient to meet the

evidentiary requirements of Rule 902, N.D.R.Ev.”).

[¶35] In State v. Verdirome, the Connecticut Superior Court stated “[t]he certification of

a copy [of motor vehicle records] is not a ‘peculiarly personal’ act required to be performed

by the designated individual or official himself, such as taking an oath or the performance

of a quasi-judicial duty.” 421 A.2d 563, 566 (Conn. Super. Ct. 1980) (emphasis added).

“The state was entitled to rely upon this presumption as establishing prima facie that the

certification had been made by the commissioner, and was not bound to offer testimony

to such effect.” Id. “This presumption permits the inference that the rubber-stamp

signature of the commissioner was placed on the certification by an employee of the motor

vehicle department duly authorized by the commissioner to perform that function.” Id.

(holding that “[t]he documents, therefore, were ‘attested’ as true copies by the

‘commissioner’ as required by the statute for admissibility.”) (emphasis added).

[¶36] In this case, Hewitt objected to the admissibility of Exhibit 1.1 on the ground that

the exhibit was erroneously certified in the name of Glenn Jackson, as the Division

Director of the Department’s Drivers License Division, but who was on administrative

leave on the date of the certification. Hewitt further objected to the admissibility of Exhibit

1.2 on the ground that the exhibit was erroneously certified in the name of Robin Rehborg,

as the Interim Division Director of the Department’s Drivers License Division, but for

11
whom there purportedly was no evidence that she had not been sworn in as a director of

the Department on the date of the certification. The documents in the two exhibits are

identical and consist of (1) Hewitt’s Report and Notice; (2) Hewitt’s request for an

administrative hearing; and (3) Hewitt’s drivers record.

[¶37] Hewitt overlooks the fact that his Report and Notice was properly authenticated

through the testimony of Sgt. Herzig under Rule 901(b)(1). At the hearing, Sgt. Herzig

testified:

Mr. Fagerlund: In a moment I’m going to hand you what’s been marked
as Exhibit 1. I’ve got two versions of it, marked 1.1 and the other 1.2. 1.1
has five pages marked in the lower right hand corner with a notation page
1 of 5 through page 5 of 5. It has a certification page on the front
transmitting five pages on April 24, 2019 signed by Glenn Jackson. 1.2 has
the same documents but a different certification page. This one indicates
five pages transmitted May 8th, 2019 signed by Robin Rehborg, interim
Division Director of Driver’s License Division. I’ll hand you 1.2 just have you
identify page 2 if you would.
Sgt. Herzig: This is a copy of the Report and Notice.
Mr. Fagerlund: And was that prepared on a computer?
Sgt. Herzig: Yes.
Mr. Fagerlund: And then did you print it on paper?
Sgt. Herzig: I did.
Mr. Fagerlund: Was the computer program … what’s the procedure for
signing the document?
Sgt. Herzig: It’s an electronic signature.
Mr. Fagerlund: Do you need a secure password to use the program?
Sgt. Herzig: You do.
Mr. Fagerlund: If we disregard the … those ink stamps on the upper right
is Exhibit 1.2, page 2 of 5 a true and correct copy of the original?
Sgt. Herzig: It is.
Mr. Fagerlund: I’ll just have you take a look at page 2 of 1.1. Can you

12
 verify that that is a … an exact duplicate of the Report and Notice that you
just identified?
Sgt. Herzig: It is.
Id. at 15, l. 3 – 16, l. 6.

[¶38] With the Report and Notice having been authenticated under Rule 901(b)(1), and

Hewitt’s request for a hearing being immaterial to the hearing officer’s decision, the

remaining question is the admissibility of Hewitt’s drivers record for enhancement

purposes – whether as part of Exhibit 1.1 or Exhibit 1.2. As with the acts in Verdirome,

the certification of the copies of Hewitt’s motor vehicle records is not a “peculiarly

personal” act required to be performed by the designated individual or official himself.

Rather, the official acts of Drivers License Division Director are entitled to a disputable

presumption of regularity. N.D.C.C. § 31-11-03 (“That official duty has been performed

regularly.”); cf. Bieber v. N.D. Dep’t of Transp. Dir., 509 N.W.2d 64, 68 (N.D. 1993) (“The

official acts of the State Toxicologist are entitled to a disputable presumption of

regularity.”); State v. VandeHoven, 388 N.W.2d 857, 859 (N.D. 1986) (“The disputable

presumption of regularity pursuant to § 31-11-03(15), N.D.C.C., applies to the official acts

of the State Toxicologist; and because no evidence that would contradict this presumption

was introduced, the presumption stands.”)

[¶39] In this case, Hewitt claims that Rehborg’s certification is the type of act that

requires an oath of office as a civil officer under N.D.C.C. § 44-01-05, but for which the

Department stated no such record exists. See Tr. at Ex. 17-D. Section § 44-01-05

provides “[e]ach civil officer in this state before entering upon the duties of that individual's

office shall take and subscribe the oath prescribed in section 4 of article XI of the

Constitution of North Dakota.” N.D.C.C. § 44-01-05.

[¶40] Yet, what Rule 902(4)(A), N.D.R.Ev., requires is -- not that the exhibit be certified

by a civil officer under oath performing a peculiar act -- but that the copy be certified as

correct by “the custodian or another person authorized to make the certification.”

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Rehborg’s certification, not only identifies her as the Interim Division Director, but for the

purpose of this matter, it identifies her as having legal custody of the documents. Hewitt

failed to dispute the certification and presumption that Rehborg had “legal custody” of the

documents on the date of the certification.

[¶41] With Exhibit 1.2 having been properly admitted under Rule 902(4)(A), N.D.R.Ev.,

the court need not address the remaining issue of admissibility of Exhibit 1.1, which

Exhibit 1.2 was intended to replace. See Nielsen v. Neuharth, 331 N.W.2d 58, 61 (N.D.

1983) (“Matters which are not necessary to a determination of a case need not be

considered.”). The hearing officer acted within his discretion in admitting Hewitt’s Report

and Notice under Rule 901(b)(1), N.D.R.Ev., and Exhibit 1.2 under Rule 902(4)(A),

N.D.R.Ev.
IV. The revocation of Hewitt’s driving privileges is not barred by the doctrine of
equitable estoppel.

[¶42] “Equitable estoppel is codified in N.D.C.C. § 31-11-06, which provides that ‘[w]hen

a party, by that party's own declaration, act, or omission, intentionally and deliberately

has led another to believe a particular thing true and to act upon such belief, that party

shall not be permitted to falsify it in any litigation arising out of such declaration, act, or

omission.’” Nelson v. Johnson, 2010 ND 23, ¶ 30 778 N.W.2d 773 (quoting N.D.C.C. §

31-11-06). “Estoppel is ordinarily a question of fact.” Id. (citing Peterson Mech., Inc. v.

Nereson, 466 N.W.2d 568, 571 (N.D. 1991)).

[¶43] “In Farmers Cooperative Association of Churchs Ferry v. Cole, 239 N.W.2d 808,

809 (N.D. 1976), at syllabus 4, [the Court] set forth the basic elements of estoppel that

must be met as to the person being estopped and as to the person claiming the estoppel.”

Blocker Drilling Canada, Ltd. v. Conrad, 354 N.W.2d 912, 920 (N.D. 1984). “As to the

person being estopped the elements are: 1) conduct which amounts to a false

representation or concealment of material facts, or, at least, which is calculated to convey

the impression that the facts are otherwise than those which the party subsequently

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attempts to assert; 2) the intention, or at least the expectation, that such conduct will be

acted upon by, or will influence the other party or persons; and 3) knowledge, actual or

constructive, of the real facts.” Id. “As to the person claiming estoppel the elements are:

1) lack of knowledge and the means of knowledge of the truth as to the facts in question;

2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and

3) action or inaction based thereon, of such a character as to change the position or status

of the party claiming the estoppel, to his injury, detriment, or prejudice.” Id. “Estoppel is

not favored and the burden of proving each element of an estoppel is on the party

asserting it.” St. John Pub. Sch. Dist. No. 3 v. Engineers-Architects, P.C., 414 N.W.2d

285, 286 (N.D. 1987) (citing Johnson v. Northwestern Bell Tel. Co., 338 N.W.2d 622 (N.D.

1983)).

[¶44] In this case, Hewitt claims the doctrine of equitable estoppel bars the revocation

of his driving privileges. Hewitt asks the district court – sitting in its appellate capacity –

to make independent factual findings of the parties’ state of mind based solely upon

documents concerning the employment status of Glenn Jackson and the certification of

Exhibit 1.1, without accompanying testimony. In particular, Hewitt claims the Department

engaged in “deceit.” See Appellants Br. at ¶¶ 5-6. Hewitt makes no claim he relied in

good faith to his detriment or changed his position or status based on the two exhibits.

[¶45] “An appeal of an administrative agency decision to the district court invokes that

court's appellate jurisdiction.” Stenvold v. Workforce Safety and Ins., 2006 ND 197, ¶ 10,

722 N.W.2d 365 (citations omitted). “The district court’s appellate review is expressly

limited to the agency record filed with the court.” Id. “[The court] will not substitute [its]

judgment for that of the agency or make independent findings.” Aamodt v. N.D. Dep’t of

Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308 (citing Sonsthagen v. Sprynczynatyk, 2003

ND 90, ¶ 7, 663 N.W.2d 161). Making determinations of equitable estoppel is outside the

limited authority of the reviewing court. The revocation of Hewitt’s driving privileges is not

barred by the doctrine of equitable estoppel.

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V. The Department did not engage in a persistent pattern of improper agency
conduct so as to deny Hewitt a fair hearing and warrant the reversal of the
revocation of Hewitt’s driving privileges.

[¶46] “To warrant a reversal based on [statutory] noncompliance . . ., a defendant must

show either prejudice caused by the delay or the Department systemically disregarded

the requirements of the law.” Bayles v. N.D. Dep’t of Transp., 2015 ND 298, ¶ 9, 872

N.W.2d 626 (citing May v. Sprynczynatyk, 2005 ND 76, ¶¶ 15, 17-18, 695 N.W.2d 196

(“When a governmental agency systemically disregards the requirements of the law, a

court may reverse a decision in favor of the government to prophylactically ensure that

the government acts consistently and predictably in accordance with the law.”)). “To

establish a systemic disregard, a party must demonstrate some persistent pattern of

improper agency conduct, and more than a single miscue by the government is required

to evidence institutional noncompliance which amounts to systemic disregard of the law.”

Id. (quoting May, at ¶ 17) (emphasis added). “Reversal for conduct which is merely

potentially prejudicial, without a showing of actual prejudice, may be warranted as a

sanction for institutional noncompliance and systemic disregard of the law if the conduct

is commonplace.” Id. (quoting May, at ¶ 17).

[¶47] “The word ‘persistent’ is defined by lexicographers as ‘refusing to relent;

continuing, especially in the face of opposition . . . stubborn; persevering . . . constantly

repeated.’” Governing Bd. of the Oakdale Union Sch. Dist. v. Seaman, 104 Cal. Rptr. 64,

67 (Cal. Ct. App. 1972) (citations omitted) (emphasis added). That characterization of

”persistent” is reflected in North Dakota precedent where systemic disregard has become

evident with reversals occurring after a court previously advised the agency conduct was

improper. See Madison, 503 N.W.2d at 246 (“[T]he Department has continued to waive

the Rules of Evidence despite district court instructions to the contrary.”).

[¶48] Although Hewitt cites a number of cases involving a certification by Glenn Jackson,

Hewitt cites no intervening caselaw which would have advised the Department that such

conduct may have been improper. Without such an occurrence, it cannot be said the

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Department’s conduct over the several month occurrence, was persistent in the sense of

“refusing to relent; continuing, especially in the face of opposition . . .” Nor has there been

any determination that the conduct was improper. The Department did not engage in a

persistent pattern of improper agency conduct so as to deny Hewitt a fair hearing and

warrant the reversal of the revocation of Hewitt’s driving privileges.

VI. Hewitt is not entitled to an award of attorney fees and costs under N.D.C.C.
§ 28-32-50(1) in the event the hearing officer’s decision is not affirmed by the
district court.

[¶49] “[Section 28-32-50, N.D.C.C.,] sets forth a two-part test which must be met in order

to properly award attorney fees: first, the nonadministrative party must prevail, and

second, the agency must have acted without ‘substantial justification.’” Kroschel v. Levi,

2015 ND 185, ¶ 35, 866 N.W.2d 109 (quoting Lamplighter Lounge, Inc. v. State, 523

N.W.2d 73, 75 (N.D. 1994)) (alteration in Kroschel). As “summarized in Lamplighter

Lounge, Inc. v. State:

. . . The second requirement is shaped by our definition of substantial
justification. In defining this term we have been guided by the United States
Supreme Court's definition of the term ‘substantially justified.’ There it was
said that substantially justified means ‘justified in substance or in the
main’—that is, justified to a degree that could satisfy a reasonable person.
A position may be justified, despite being incorrect, so long as a reasonable
person could think that it has a reasonable basis in law and fact. Substantial
justification represents a middle ground between the automatic award of
fees to the prevailing party on one side, and awarding fees only when a
position is frivolous or completely without merit on the other.”

Id. (quoting Lamplighter Lounge, 523 N.W.2d at 75 (original internal citations and

quotation marks omitted in Kroschel). “Merely because an administrative agency's

actions are not upheld by a court does not mean that the agency's action was not

substantially justified.” Id. (quoting Tedford v. Workforce Safety & Ins., 2007 ND 142,

¶ 25, 738 N.W.2d 29).

[¶50] In this case, Hewitt did not prevail before the hearing officer. On appeal, the

Department has presented good faith arguments supported by caselaw in opposing

Hewitt’s claims. Hewitt is not entitled to an award of attorney fees and costs under

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N.D.C.C. § 28-32-50(1) in the event the hearing officer’s decision is not affirmed by the

district court.

CONCLUSION

[¶51] The North Dakota Department of Transportation respectfully requests this Court

affirm the administrative hearing officer’s decision suspending Larry William Hewitt’s

driving privileges for a period of two years.

Dated this 31st day of July, 2019.

State of North Dakota
Wayne Stenehjem
Attorney General
By: /s/ Douglas B. Anderson
Douglas B. Anderson
Assistant Attorney General
State Bar ID No. 05072
Office of Attorney General
500 North 9th Street
Bismarck, ND 58501-4509
Telephone (701) 328-3640
Facsimile (701) 328-4300
Email dbanders@nd.gov

Attorneys for Appellee.

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