McCoy v. N. Dakota Dep't of Transp.

• Decision Date: 17 July 2014
• Docket Number: No. 20130300.,20130300.
• Citation: 2014 ND 119,848 N.W.2d 659
• Parties: Ronald Dale McCOY, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.
• Court: North Dakota Supreme Court

848 N.W.2d 659

2014 ND 119

Ronald Dale McCOY, Petitioner and Appellant

v.NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.

No. 20130300.

Supreme Court of North Dakota.

June 24, 2014.

Rehearing Denied July 17, 2014.

Thomas F. Murtha IV, Dickinson, N.D., for petitioner and appellant.

Michael T. Pitcher, Office of Attorney General, Bismarck, N.D., for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Ronald Dale McCoy appeals from a district court judgment affirming a Department of Transportation decision suspending his driving privileges for 180 days. We affirm because McCoy consented to take the chemical breath test given by the law enforcement officer and McCoy's constitutional rights were not violated as a matter of law by North Dakota's implied consent law.

I

[¶ 2] In March 2013, a Stark County sheriff's deputy stopped a vehicle that appeared to not have a light illuminating the license plate. The vehicle was driven by McCoy. While speaking with McCoy, the deputy noticed an odor of alcohol and McCoy's eyes appeared bloodshot and watery. McCoy admitted he had been drinkingearlier in the day, but no evidence was presented about how much or at what time the alcohol had been consumed. McCoy agreed to field sobriety testing. Although McCoy passed the walk-and-turn test, he failed the horizontal gaze nystagmus test and the one-legged-stand test. After McCoy failed the tests, the deputy gave the North Dakota implied consent advisory, requested McCoy take an onsite screening test and administered an onsite breath test. This test showed an alcohol concentration of.196. The deputy arrested McCoy for driving a vehicle while under the influence of intoxicating liquor.

[¶ 3] The deputy transported McCoy to the law enforcement center and again read McCoy the implied consent advisory. McCoy agreed to take the chemical breath test. The deputy administered the Intoxilyzer 8000, which revealed an alcohol concentration of .203. The deputy issued McCoy a report and notice of the Department's intent to suspend his driving privileges. McCoy requested an administrative hearing.

[¶ 4] In April 2013, a hearing was held before a Department hearing officer, who subsequently issued findings of fact, conclusions of law and a decision suspending McCoy's driving privileges for 180 days. The hearing officer found McCoy agreed to take a chemical breath test:

“After transport to the law enforcement center, the implied consent advisory was given and Mr. McCoy agreed to take a chemical breath test. Deputy Sarnicki is certified to administer the Intoxilyzer 8000. Deputy Sarnicki administered the Intoxilyzer 8000 according to the state toxicologist's approved method at 11:52 PM. The result was .203 AC. The report and notice was issued to Mr. McCoy.”

Addressing McCoy's argument that North Dakota's implied consent law violates his constitutional rights, the hearing officer concluded:

“The last objection made by Mr. McCoy is that the implied consent law violates his constitutional protections. The argument in sum is that the Supreme Court of the United States recently issued an opinion from a case out of Missouri [Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ]. In that case the Supreme Court determined that a blood sample obtained by force and without a warrant after the Missouri driver had refused to be tested violated the Missouri driver's constitutional rights. There are several important distinctions that must be made. First the blood sample was used in a criminal case against the Missouri driver. This hearing is not a criminal proceeding. Second the Missouri driver had no right of refusal in contrast to North Dakota which allows a right of refusal in regards to the implied consent statutes. Third the issue of consent. The NDCC states any individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter. Mr. McCoy argues that this is not freely given consent, that it is in fact coerced consent which is not allowed as an exception to a warrantless search. The right to drive is not a constitutional right, it is a privilege.”

[¶ 5] McCoy appealed to the district court, which affirmed the hearing officer's decision.

II

[¶ 6] This Court reviews the Department's decision to suspend a person's driving privileges under the AdministrativeAgencies Practice Act, N.D.C.C. ch. 28–32. Painte v. Dir., Dep't of Transp., 2013 ND 95, ¶ 6, 832 N.W.2d 319. When an administrative agency's decision is appealed from the district court, we review the agency's decision. Id. Generally, “[c]ourts exercise limited review in appeals from administrative agency decisions, and the agency's decision is accorded great deference.” Id. (citation omitted). This Court reviews an agency's decision under N.D.C.C. § 28–32–49 in the same manner as the district court under N.D.C.C. § 28–32–46. Painte, at ¶ 6.

[¶ 7] We must affirm the agency's decision unless:

“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.

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. Although we review the agency's findings and conclusions, “the district court's analysis is entitled to respect if it is sound.” Daniels v. Ziegler, 2013 ND 157, ¶ 5, 835 N.W.2d 852 (citation omitted).

[¶ 8] “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.’ ” Yellowbird v. N.D. Dep't of Transp., 2013 ND 131, ¶ 8, 833 N.W.2d 536 (citation omitted). This Court does not make independent findings or substitute its judgment. Id. Once the facts are established, their significance presents a question of law, which we review de novo. Bell v. N.D. Dep't of Transp., 2012 ND 102, ¶ 20, 816 N.W.2d 786. Our “standard of review for a claimed violation of a constitutional right is de novo.” Martin v. N.D. Dep't of Transp., 2009 ND 181, ¶ 5, 773 N.W.2d 190 (citation omitted).

III

[¶ 9] McCoy's sole issue is that the Department hearing officer erred in its conclusions of law because the breath test taken by law enforcement constituted a warrantless search and the Department failed to establish an exception to the warrant requirement. McCoy therefore contends the hearing officer's decision violated his constitutional rights under U.S. Const. amend. IV and N.D. Const. art. I, § 8.

A

[¶ 10] Unreasonable searches and seizures are prohibited under U.S. Const. amend. IV and N.D. Const. art. I, § 8. See Hoover v. Director, N.D. Dep't of Transp., 2008 ND 87, ¶ 15, 748 N.W.2d 730; City of Fargo v. Wonder, 2002 ND 142, ¶ 18, 651 N.W.2d 665. “[I]t is well-settled that administration of a breath test to determine alcohol consumption is a search.” Wonder, at ¶ 19; see also Skinner v. Railway Labor Execs.' Ass'n, 489 U.S. 602, 616–17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). “Warrantless searches are unreasonable unless they fall within one of the recognized exceptions to the warrant requirement.” Wonder at ¶ 18. Consent is one exception to the warrant requirement. See Hoover, at ¶ 15; Wonder, at ¶ 20. “To be effective, consent must be voluntarily given under the totality of the circumstances and ‘must not be coerced by explicit or implicit means or by implied threat or covert force.’ ” Hoover, at ¶ 15 (quoting State v. Avila, 1997 ND 142, ¶ 16, 566 N.W.2d 410). “The Department has the burden of establishing an exception to the warrant requirement.” Hoover, at ¶ 15 (citing State v. Graf, 2006 ND 196, ¶ 9, 721 N.W.2d 381).

[¶ 11] At the time of McCoy's stop, North Dakota's implied consent law provided:

“Any individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, or urine for the purpose of determining the alcohol concentration or presence of other drugs, or combination thereof, in the individual's blood, breath, or urine.... The test or tests must be administered at the direction of a law enforcement officer only after placing the individual ... under arrest and informing that individual that the individual is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof.... The law enforcement officer shall also inform the individual charged that refusal of the individual to submit to the test determined appropriate will result in a revocation for up to four years of the individual's driving privileges. The law enforcement officer shall determine which of the tests is to be used.”

N.D.C.C. § 39–20–01 (2011) (emphasis added). Section 39–20–04(1)(2011), N.D.C.C., provided that “[i]f a person refuses to submit to testing under section 39–20–01 ..., none may be given,” but the person's license may be administratively revoked for up to four years.

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