816 N.W.2d 786 (N.D. 2012), 20110201, Bell v. North Dakota Dept. of Transp.

Docket Nº:20110201.
Citation:816 N.W.2d 786, 2012 ND 102
Opinion Judge:CROTHERS, Justice.
Party Name:Cecil H. BELL, Petitioner and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
Attorney:Henry H. Howe (argued), Grand Forks, ND, for petitioner and appellant. Michael Trent Pitcher (argued), Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.
Judge Panel:GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur. DALE V. SANDSTROM, J., concurs in the result.
Case Date:May 17, 2012
Court:Supreme Court of North Dakota
 
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Page 786

816 N.W.2d 786 (N.D. 2012)

2012 ND 102

Cecil H. BELL, Petitioner and Appellant,

v.

NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.

No. 20110201.

Supreme Court of North Dakota.

May 17, 2012

Page 787

Henry H. Howe (argued), Grand Forks, ND, for petitioner and appellant.

Michael Trent Pitcher (argued), Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.

Page 788

CROTHERS, Justice.

[¶ 1] Cecil H. Bell appeals a district court judgment affirming a North Dakota Department of Transportation decision revoking his driving privileges for one year. Bell argues he was denied his statutory right to consult with an attorney before deciding whether to submit to a chemical test. We affirm.

I

[¶ 2] On October 2, 2010, at approximately 6:27 p.m., North Dakota Highway Patrol Officer Dolf Oldenburg initiated a traffic stop after observing a motor home driven by Bell cross the fog line several times. Upon making contact with Bell, Oldenburg detected a strong odor of alcohol and observed Bell's eyes were glassy and his speech was slurred. At Oldenburg's request, Bell exited the motor home and got into the front passenger seat of Oldenburg's patrol vehicle. Oldenburg radioed North Dakota Highway Patrol Officer Adam Dvorak for assistance.

[¶ 3] At approximately 6:34 p.m., Dvorak arrived at the scene and took over the investigation. Dvorak moved Bell to his patrol vehicle, a sport utility vehicle with a police dog in the cargo area. Dvorak placed Bell in the front seat, and Bell agreed to perform the alphabet, backward count, finger count and horizontal gaze nystagmus tests. After administering the tests, Dvorak read Bell the onsite screening implied consent advisory and asked Bell to submit to the S-D5 onsite screening test. Bell refused to submit to the S-D5 but agreed to perform standardized field sobriety tests outside the patrol vehicle. Dvorak attempted to administer the one-leg-stand test, but Bell would not follow his instructions. At approximately 7:27 p.m., Dvorak arrested Bell for driving under the influence (" DUI" ), handcuffed Bell and placed Bell in the back seat of his patrol vehicle. Dvorak and Oldenburg began securing Bell's motor home.

[¶ 4] At approximately 7:52 p.m., North Dakota Highway Patrol Officer Quentin McCart arrived at the scene. McCart sat in Dvorak's vehicle with Bell while Oldenburg and Dvorak finished securing the motor home. Dvorak returned to his patrol vehicle. Bell complained about the dog in Dvorak's vehicle, and Dvorak moved Bell to the back seat of McCart's patrol vehicle.

[¶ 5] At approximately 7:58 p.m., McCart left the scene to transport Bell to the Grand Forks County Correctional Center. During transport, McCart stopped to adjust Bell's handcuffs. McCart then continued the transport and at approximately 8:06 p.m., read Bell the chemical test implied consent advisory. Bell interrupted McCart repeatedly. McCart asked Bell to submit to an Intoxilyzer 8000 breath test. Bell did not affirmatively consent or refuse.

[¶ 6] When McCart and Bell arrived at the Correctional Center, Bell stated he would not submit to an Intoxilyzer test until he consulted an attorney. At approximately 8:09 p.m., Bell was moved inside the Correctional Center and given a telephone and a telephone book. Before making any calls, Bell asked for a glass of water. At approximately 8:23 p.m., Bell called a friend. Bell told the officers his friend was bringing an attorney to the Correctional Center. Dvorak asked if Bell would submit to the Intoxilyzer test. Bell stated he would not take the test before talking to an attorney. At 8:27 p.m., when the two-hour period for conducting the chemical test expired, Dvorak issued a Report and Notice, indicating Bell had refused to submit to the onsite screening test and the Intoxilyzer test.

[¶ 7] Bell requested an administrative hearing. The hearing officer made detailed findings regarding Bell's behavior

Page 789

following the traffic stop and stated, " Mr. Bell's behavior at the scene of the traffic stop, during transport and at the correctional center could reasonably be interpreted as intended to delay the investigation." The hearing officer found Bell refused to submit to the onsite screening test and the Intoxilyzer test and revoked Bell's driving privileges for one year. Bell appealed to the district court. The district court affirmed.

II

[¶ 8] We exercise limited review of the administrative revocation of driving privileges under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Wetzel v. N.D. Dep't of Transp., 2001 ND 35, ¶ 9, 622 N.W.2d 180. Our standard of review is the same standard applied by the district court. N.D.C.C. § 28-32-49. We must affirm the administrative agency's decision unless:

" 1. The order is not in accordance with the law.

" 2. The order is in violation of the constitutional...

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