Wetzel v. NORTH DAKOTA DEPT. OF TRANSP.

Citation2001 ND 35,622 N.W.2d 180
Decision Date15 February 2001
Docket NumberNo. 20000186.,20000186.
PartiesDavid John WETZEL, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
CourtUnited States State Supreme Court of North Dakota

Andrew Moraghan, Assistant Attorney General, Bismarck, ND, for respondent and appellant.

Joe A. Johnson, of Nelson, Blumer & Johnson, PLLP, Fargo, ND, for petitioner and appellee.

NEUMANN, Justice.

[¶ 1] The North Dakota Department of Transportation ("Department") appeals from a district court judgment reversing the Department's one-year revocation of David John Wetzel's driver's license for refusing to take a chemical test. Because Wetzel was given a reasonable opportunity to consult with an attorney, we reverse.

I

[¶ 2] On January 7, 2000, at 1:18 a.m., Fargo police officer Charles Sullivan arrested Wetzel for driving under the influence. Following the arrest, Officer Sullivan recited the implied consent advisory and asked Wetzel to submit to a blood-alcohol concentration test. Wetzel said he did not understand the advisory, and Officer Sullivan explained the advisory. Wetzel said he still did not understand. Officer Sullivan asked him what part he did not understand. Wetzel replied he did not understand the legal language. Wetzel asked to call his wife. Officer Sullivan called Wetzel's wife on Officer Sullivan's cellular telephone and allowed Wetzel to speak with her. After the conversation, Officer Sullivan again asked Wetzel if he would submit to a blood test. Wetzel said he wanted to talk to an attorney. At 1:25 a.m., Officer Sullivan gave Wetzel the cellular telephone and a telephone book to try to contact an attorney. It is disputed whether Wetzel was handcuffed at the time.

[¶ 3] Officer Sullivan testified Wetzel complained about his job and his life for a few minutes before calling and speaking to his wife again at 1:30 a.m. At 1:35 a.m., Wetzel called an attorney's office, but received no answer. Officer Sullivan testified he called the attorney's residence, trying to help Wetzel, but again received no answer. Wetzel called a second attorney's office at 1:39 a.m., but received no answer. Officer Sullivan dialed the second attorney's residential number, but received no answer. Wetzel resumed telling Officer Sullivan about his life and his job. Officer Sullivan tried to focus Wetzel on his current situation. Wetzel testified Officer Sullivan had been trying to help him contact an attorney. Officer Sullivan again recited the implied consent advisory and asked Wetzel if he understood it. Wetzel indicated he did. Officer Sullivan asked Wetzel if he would submit to the blood test, and Wetzel again stated he wanted to talk to an attorney.

[¶ 4] At 1:48 a.m., Wetzel recited another phone number. Officer Sullivan dialed the number, believing it was an attorney's number. There was no answer. Officer Sullivan told Wetzel he had been given a reasonable amount of time to contact an attorney. Officer Sullivan told Wetzel he could have one more call, but then Wetzel would have to indicate whether he would submit to the blood test. Wetzel recited another number at 1:50 a.m. Officer Sullivan dialed the number. Again, there was no answer.

[¶ 5] Officer Sullivan told Wetzel he would have to indicate whether he would submit to the blood test. Wetzel again said he wanted to talk to an attorney. Officer Sullivan stated he was going to ask Wetzel one final time whether he would submit to the blood test and that if Wetzel's response was anything other than a "yes," it would be considered a refusal. Wetzel asked Officer Sullivan what he meant by "refusal." Officer Sullivan explained the term and again asked Wetzel whether he would submit to a blood test. Wetzel said he wanted to talk to an attorney. Officer Sullivan told Wetzel he would be deemed to have refused to submit to the blood test. At this point, Officer Sullivan had given Wetzel 25 minutes, from 1:25 a.m. to 1:50 a.m., to consult an attorney.

[¶ 6] Officer Sullivan began driving Wetzel to the county jail. A hospital was near the route they were traveling. Officer Sullivan again told Wetzel he had one final opportunity to consent to the blood test, but any reply other than a "yes" would be deemed a refusal. Wetzel said he wanted to talk to an attorney. Officer Sullivan told Wetzel his reply would be deemed a refusal. During the rest of the trip to the police station, Wetzel said he wanted to talk to an attorney and insisted he had not refused anything. The record is silent as to what happened after they reached the jail, except at 2:20 a.m., Officer Sullivan issued a report and notice to Wetzel, notifying him of the Department's intent to revoke his driving privileges.

[¶ 7] Wetzel requested an administrative hearing on the proposed revocation. After the administrative hearing, the hearing officer concluded Wetzel was given a reasonable opportunity to contact an attorney before deciding whether to take the test and Wetzel refused to submit to the test. The hearing officer revoked Wetzel's driving privileges for one year. [¶ 8] Wetzel appealed the revocation of his driving privileges to the district court. The district court concluded Wetzel was not afforded a reasonable opportunity to contact an attorney before deciding whether to submit to a blood test and therefore did not refuse testing. Accordingly, the district court reversed the revocation of Wetzel's license. The Department appeals.

II

[¶ 9] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative decision to suspend or revoke a driver's license. Houn v. N.D. Dep't of Transp., 2000 ND 131, ¶ 5, 613 N.W.2d 29. Our standard of review is the same standard applied by the district court. N.D.C.C. § 28-32-21. We review the record compiled by the agency and affirm the agency's decision unless:

1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practice Act were not complied with in the proceedings before the agency; 4) the agency's rules or procedures have not afforded the appellant a fair hearing; 5) the agency's findings are not supported by a preponderance of the evidence; or 6) the conclusions of law and the agency's decision are not supported by its findings of fact. N.D.C.C. § 28-32-19.

Id. at ¶ 5. We give great deference to administrative agency rulings. Presteng v. Dir., N.D. Dep't of Transp., 1998 ND 114, ¶ 5, 579 N.W.2d 212. When reviewing the findings of an administrative agency, we do not substitute our own judgment for that of the agency, but instead determine whether a reasonable mind could have determined that the factual conclusions were proven by the weight of the evidence presented. Morrell v. N.D. Dep't of Transp., 1999 ND 140, ¶ 6, 598 N.W.2d 111.

[¶ 10] Whether a person has been afforded a reasonable opportunity to consult with an attorney is a mixed question of law and fact. See, e.g., Groe v. Comm'r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. Ct.App.2000)

(stating that once the facts are established, their significance becomes a question of law.) We review mixed questions of law and fact under the de novo standard of review. State v. Torgerson, 2000 ND 105, ¶ 3, 611 N.W.2d 182.

III

[¶ 11] Wetzel argues he was not afforded a reasonable opportunity to contact an attorney. Specifically, Wetzel argues he was denied a reasonable opportunity to contact an attorney because he was not provided a reasonable amount of time to contact an attorney and because the back seat of a police car is an inherently coercive environment not conducive to consulting an attorney.

[¶ 12] In Kuntz v. State Highway Commissioner, 405 N.W.2d 285, 290 (N.D.1987), we held that an arrested person has a limited statutory right under N.D.C.C. ch. 39-20 to consult with counsel before deciding whether to submit to a chemical test. However, if an arrestee is unsuccessful in contacting an attorney by telephone within a reasonable amount of time, the arrestee must nevertheless make an election to take or refuse the chemical test. Bickler v. N.D. State Highway Comm'r, 423 N.W.2d 146, 147 (N.D.1988). The arrestee's right to consult privately with counsel must be balanced against society's strong interest in obtaining important evidence. State v. Sadek, 552 N.W.2d 71, 73 (N.D.1996); City of Mandan v. Jewett, 517 N.W.2d 640, 642 (N.D.1994). If a person arrested for driving under the influence is asked to submit to a chemical test and responds with any affirmative mention of a need for an attorney, the failure to allow the arrested person a reasonable opportunity to contact an attorney prevents the revocation of his or her license for refusal to take the test. Baillie v. Moore, 522 N.W.2d 748, 750 (N.D.1994). The reasonableness of the opportunity to consult with counsel is tested objectively, focusing on the totality of the circumstances. Jewett, at 642.

A

[¶ 13] Wetzel argues he was denied a reasonable opportunity to consult an attorney because of the short time Officer Sullivan allowed him to attempt to contact an attorney.

[¶ 14] At 1:50 a.m., Officer Sullivan deemed Wetzel to have refused testing. Approximately one hour remained during which the test could have been administered. Wetzel argues that because of the remaining hour, coupled with the increased difficulty of contacting an attorney because of the time of his arrest, 25 minutes was not a reasonable amount of time to contact an attorney. At oral argument on appeal, counsel for Wetzel maintained that if an arrestee indicates he or she wants an attorney, the officer is required to wait the full statutory two hours before deeming the driver to have refused testing in order to satisfy reasonableness.

[¶ 15] Under North Dakota law, a chemical test to determine a driver's blood-alcohol concentration must be given within two hours of driving if it is to be used to support imposition of an...

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