MARING, Justice.
[¶ 1] The North Dakota Department of Transportation appeals from the district court's judgment reversing an administrative hearing officer's decision to suspend Thorsrud's driving privileges for two years
[¶ 2] In February 2011, Carrie Thorsrud was arrested for driving under the influence of alcohol and transported to a law enforcement center. At 2:31 a.m., Officer Troy Nielsen, the arresting officer, determined Thorsrud's mouth was clear and, at 2:52 a.m., administered an Intoxilyzer test. On the Intoxilyzer Test Record and Checklist, Officer Nielsen certified the approved method of collection was followed and the twenty-minute waiting period was ascertained before administering the test. Officer Nielsen further noted on the record and checklist that Thorsrud's "mouth [was] cleared by Nielsen @ 0231 + B4 test." The Intoxilyzer test revealed Thorsrud's alcohol concentration was .182. Officer Nielsen issued a report and notice to Thorsrud indicating the intent to suspend her driving privileges.
[¶ 3] Thorsrud requested and received an administrative hearing. At the hearing, the Intoxilyzer Test Record and Checklist was offered and received into evidence without Thorsrud's objection. Officer Nielsen testified that he followed the approved method in administering the Intoxilyzer test to Thorsrud. Thorsrud testified that, after arriving at the law enforcement center, her handcuffs were removed, she took off her jewelry, and she emptied her pockets. She also testified Officer Nielsen allowed her to use the restroom unsupervised during the twenty-minute waiting period. On cross-examination, Thorsrud further testified that, while using the restroom, she did not place anything into or rinse her mouth. The hearing officer recalled Officer Nielsen to the stand. Officer Nielsen confirmed that Thorsrud's testimony about using the restroom unsupervised was accurate. Officer Nielsen did not provide any additional testimony as to measures he may have taken to ascertain the twenty-minute waiting period while allowing Thorsrud to use the restroom unsupervised. Thorsrud argued Officer Nielsen failed to comply with the approved method's requirement to ascertain the twenty-minute waiting period because he had allowed her to use the restroom unsupervised.
[¶ 4] At the conclusion of the hearing, the hearing officer issued his findings of fact, conclusions of law, and decision to suspend Thorsrud's driving privileges for two years. In reaching his decision, the hearing officer found "Nielsen ascertained the twenty minute wait," "[w]hile using the restroom, Thorsrud did not place anything into her mouth," and "[t]he intoxilyzer test was given in accordance with the state toxicologist's approved method."
[¶ 5] Thorsrud appealed to the district court. The district court reversed the hearing officer's decision, concluding Officer Nielsen did not properly ascertain the twenty-minute waiting period before administering the test, the approved method was not followed, and the test result is not admissible evidence because the hearing officer erred in finding the twenty-minute waiting period had been properly ascertained. The Department of Transportation appeals.
[¶ 6] On appeal, the Department argues the district court erred in reversing the hearing officer's suspension of Thorsrud's
[¶ 7] The review of a decision to suspend a driver's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Leno v. N.D. Dep't of Transp., 2008 ND 10, ¶ 6, 743 N.W.2d 794. When reviewing an administrative agency's decision, we determine "only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record." Buchholtz v. N.D. Dep't of Transp., 2008 ND 53, ¶ 9, 746 N.W.2d 181. The district court, under N.D.C.C. § 28-32-46, and this Court, under N.D.C.C. § 28-32-49, must affirm an agency's order unless:
Questions of law are fully reviewable on appeal from an administrative decision. Sample v. N.D. Dep't of Transp., 2009 ND 198, ¶ 5, 775 N.W.2d 707.
[¶ 8] Section 39-20-07(5) and (6), N.D.C.C., govern the admissibility of Intoxilyzer test results into evidence:
The purpose of N.D.C.C. § 39-20-07 is "`to ease the requirements for admissibility
[¶ 9] The Department argues the hearing officer's finding that the twenty-minute waiting period was ascertained is not against the greater weight of the evidence. To support its argument, the Department contends Thorsrud failed to rebut the prima facie evidence establishing Officer Nielsen ascertained the twenty-minute waiting period. Further, even if Thorsrud rebutted the prima facie evidence, any defect in establishing fair administration was cured by her own testimony.
[¶ 10] At the administrative hearing, the Department offered into evidence the Intoxilyzer Test Record and Checklist, which was admitted without Thorsrud's objection. In that record, Officer Nielsen indicated that he had ascertained the twenty-minute waiting period; noted he followed the approved method and instructions in conducting the test; and noted he had checked Thorsrud's mouth at 2:31 a.m. and before the test. Under N.D.C.C. § 39-20-05(4), once the Intoxilyzer Test Record and Checklist was admitted into evidence, the Department "establish[ed] prima facie [its] contents without further foundation" that Officer Nielsen had followed the approved method and ascertained the twenty-minute waiting period. The Intoxilyzer Test Record and Checklist is "presumed to be sufficiently complete to show fair administration until the defendant shows that `the evidence as a whole clearly negates the presumed fact.'" State v. Zimmerman, 516 N.W.2d 638, 642 (N.D. 1994) (citing N.D.C.C. § 12.1-01-03(4)(a)). Therefore, a driver may rebut the Department's documentary foundation of fair administration by establishing either a deviation from approved procedures or a lack of fair administration despite compliance with approved procedures. State v. Erickson, 517 N.W.2d 646, 648 (N.D.1994) (citing Zimmerman, at 642). As such, once the record and checklist was received into evidence, Thorsrud had the burden to present sufficient evidence to rebut the prima facie evidence of fair administration by proving Officer Nielsen had not followed the approved method. See Berger v. State Highway Commissioner, 394 N.W.2d 678, 688 (N.D.1986) (explaining that if a defendant wants to discredit the prima facie fairness and accuracy of a test, it is the defendant's responsibility to produce evidence to show that the test was not fairly or adequately
Through her testimony, Thorsrud met the burden of rebutting the Department's prima facie evidence. Thorsrud sufficiently established Officer Nielsen had deviated from the approved method of administering the test when he allowed her to use the restroom unsupervised clearly negating the presumed fact that he could ascertain she had nothing to eat, drink, or smoke within twenty minutes prior to the test. See Zimmerman, 516 N.W.2d at 642 (explaining defendant must show evidence negates a presumed fact).
[¶ 11] Although Thorsrud's evidence is sufficient to rebut the prima facie presumption of fair administration, we decline Thorsrud's invitation to conclude that the testing officer's deviation from the approved method, alone, means the test was not fairly administered. The twenty-minute waiting period can be ascertained by other means. See generally Buchholz, 2002 ND 23, ¶ 10, 639 N.W.2d 490 (holding that observing the individual is not the only manner for an officer to ascertain that the individual had nothing to eat, drink, or smoke within twenty minutes before the collection of the breath sample); Johnson v. N.D. Dep't of Transp., 2004 ND 59, ¶ 18, 676 N.W.2d 807 (holding that despite a lack of testimony that the officer had constantly observed the defendant, it was not unreasonable for the fact-finder to infer that a person who was handcuffed behind his back and remained in police custody would have had nothing to eat, drink, or smoke during that time); State v. Stroh, 2011 ND 139, ¶ 15, 800 N.W.2d 276 (holding the court reasonably inferred the officer ascertained the twenty-minute waiting period where the court was left with no evidence of what happened to the can of chewing tobacco and the defendant did not testify).
[¶ 12] "Once the defendant has successfully rebutted the prosecution's prima facie showing, the prosecution may present testimony to show fair administration despite defendant's rebuttal." Erickson, 517 N.W.2d at 648-49; see also Brandt v. N.D. State Highway Commissioner, 409 N.W.2d 645, 647 (N.D.1987). In the present case, Officer Nielsen did not testify as to how he had ascertained the twenty-minute waiting period while allowing Thorsrud to use the restroom unsupervised. In Salter, 415 N.W.2d at 806 (emphasis added), we explained our concern when compliance with the approved method cannot be verified:
Therefore, our analysis becomes whether other evidence presented in this case proved the test was performed according to the approved method. See Salter, at 803 (stating when "there is no checklist showing the test was performed according to the approved method and no testimony to that effect[,] [t]he question thus becomes whether there is other evidence to establish fair administration").
[¶ 13] Here, proof of fair administration of the Intoxilyzer test was established by Thorsrud's own testimony indicating she did not have anything to eat, drink, or smoke while she was unsupervised in the restroom. After testifying on direct examination that she used the restroom unsupervised, she further testified, on cross-examination, she had not rinsed or placed anything in her mouth while unsupervised in the restroom:
The hearing officer relied on the evidence submitted through Thorsrud's own testimony in reaching his conclusion, as follows:
Any defect in the fair administration of the test was cured through the testimony of Thorsrud. The record evidence supports Officer Nielsen observed Thorsrud before and after allowing her to use the restroom unsupervised, the officer cleared her mouth at 2:31 a.m. and before the test; Thorsrud entered the restroom without anything in her pockets, and she testified she did not have anything to eat, drink, or smoke during the time she was in the restroom. It was reasonable for the hearing officer to conclude the twenty-minute waiting period had been ascertained. See Johnson, 2004 ND 59, ¶ 18, 676 N.W.2d 807.
[¶ 14] We conclude a reasoning mind reasonably could have concluded that the hearing officer's finding is supported by the weight of the evidence on the entire record and, therefore, we reverse the district court's judgment and reinstate the administrative hearing officer's decision to suspend Thorsrud's driving privileges.
[¶ 15] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.
