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IN THE COURT OF APPEALS OF IOWA No. 6-904 / 05-1849 Filed December 13, 2006 DAVID JOHN BEAURIVAGE, Petitioner-Appellant, vs. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Johnson County, L. Vern Robinson, Judge.

David John Beaurivage appeals from a district court judicial review decision affirming an administrative decision of the Iowa Department of Transportation suspending his driving privileges. AFFIRMED.

John D. Jacobsen of Hallberg, Jacobsen, Johnson & Viner, P.L.C., Cedar Rapids, for appellant. Thomas J. Miller, Attorney General, and Mark Hunacek, Assistant Attorney General, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.

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MILLER, J. David John Beaurivage appeals from a district court judicial review decision affirming an administrative decision of the Iowa Department of Transportation (IDOT) suspending his driving privileges pursuant to Iowa Code section 321.205 (2003). We affirm. The following facts are undisputed and are shown by substantial evidence in the record before the agency when the record is considered as a whole. Shortly before midnight on August 11, 2004, the petitioner-appellant David John Beaurivage was stopped by an Illinois state trooper who had observed Beaurivage fail to signal a lane change and fail to stop at a stop line. The trooper smelled a strong odor of alcoholic beverage on Beaurivage's breath and observed his eyes to be bloodshot and glassy. Beaurivage failed a field sobriety test, a preliminary breath test indicated an alcohol concentration of 0.133, and chemical breath testing disclosed an alcohol concentration of 0.112, more than the Illinois statutory limit of 0.08. The trooper reported the foregoing facts in a written, sworn report and in the early morning hours of August 12, 2004, issued a notice of summary suspension of Beaurivage's driving privileges, to take effect on the forty-sixth day thereafter. The notice informed Beaurivage of his right to a hearing to contest the suspension, and that he must file the petition seeking rescission of the suspension within ninety days. Beaurivage does not claim, and the record does not show, that he ever contested the suspension. As a result of the events of August 11-12, 2004, Illinois charged Beaurivage with operating while intoxicated. He pled guilty to an amended or

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substituted charge of reckless driving and received what appears to be the Illinois equivalent of a deferred judgment. The IDOT received notice from Illinois that Beaurivage had incurred a suspension of his driving privileges because of chemical testing which disclosed an alcohol concentration of 0.112. The IDOT served notice on Beaurivage that his privileges to operate motor vehicles were being revoked pursuant to Iowa Code section 321.205 for one year. Beaurivage contested the revocation. In final agency action in a contested case the IDOT found that Beaurivage's Iowa operating privileges had previously been revoked in 1997 under Iowa Code chapter 321 for a test refusal in Illinois, a finding which Beaurivage has not challenged, and ordered his driving privileges suspended for one year pursuant to section 321.205. Beaurivage sought judicial review, "request[ing] that [the district court] make a legal determination whether the one-year motor vehicle license revocation was appropriate." The district court affirmed the final agency action. Beaurivage appeals. Judicial review of agency action is governed by Iowa Code chapter 17A. State v. Vargason, 607 N.W.2d 691, 695 (Iowa 2000). The district court acts in an appellate capacity to correct errors at law. Ludtke v. Iowa Dep't of Transp., 646 N.W.2d 62, 64 (Iowa 2002). In reviewing the district court's decision this court applied the standards of chapter 17A to determine whether our conclusions are the same as those of the district court. Mycogen Seeds v. Sands, 686

N.W.2d 457, 464 (Iowa 2004). If they are the same, we affirm; otherwise we reverse or grant other appropriate relief. Iowa Code

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