889 N.W.2d 907 (N.D. 2017), 20140133, Beylund v. Levi

Docket Nº:20140133, 20140315
Citation:889 N.W.2d 907, 2017 ND 30
Opinion Judge:Per Curiam.
Party Name:Steve Michael Beylund, Petitioner and Appellant v. Grant Levi, Director of the North Dakota Department of Transportation, Respondent and Appellee; Douglas Dale Wojahn, Petitioner and Appellant v. Grant Levi, Director of the Department of Transportation, Respondent and Appellee
Attorney:Thomas F. Murtha IV, Dickinson, N.D., for petitioners and appellants. Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellee.
Judge Panel:Gerald W. VandeWalle, C.J., Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, S.J., Daniel J. Crothers. The Honorable Jerod E. Tufte was not a member of the Court when this case was heard and did not participate in this decision. Surrogate Judge Dale V. Sandstrom, sitting. Gerald W. Va...
Case Date:February 16, 2017
Court:Supreme Court of North Dakota
 
FREE EXCERPT

Page 907

889 N.W.2d 907 (N.D. 2017)

2017 ND 30

Steve Michael Beylund, Petitioner and Appellant

v.

Grant Levi, Director of the North Dakota Department of Transportation, Respondent and Appellee;

Douglas Dale Wojahn, Petitioner and Appellant

v.

Grant Levi, Director of the Department of Transportation, Respondent and Appellee

Nos. 20140133, 20140315

Supreme Court of North Dakota

February 16, 2017

Appeal from the District Court of Bowman County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

Appeal from the District Court of Billings County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

Thomas F. Murtha IV, Dickinson, N.D., for petitioners and appellants.

Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellee.

Gerald W. VandeWalle, C.J., Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, S.J., Daniel J. Crothers. The Honorable Jerod E. Tufte was not a member of the Court when this case was heard and did not participate in this decision. Surrogate Judge Dale V. Sandstrom, sitting.

OPINION

Per Curiam.

[¶1] After the United States Supreme Court remanded these administrative license suspension cases to this Court for further proceedings under Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), we directed reargument on issues about: (1) the appropriate forum to determine findings regarding voluntariness of the drivers' consent to warrantless blood tests incident to a lawful arrest; and (2) if the drivers' consent was not voluntary, whether evidence must be suppressed in an administrative license suspension proceeding. For purposes of these appeals only, we assume the drivers' consent to the warrantless blood tests as involuntary and we conclude the exclusionary rule does not require suppression of the results of the warrantless blood tests in the license suspension proceedings. We affirm the judgments upholding the suspensions.

I

A

[¶2] Steven Beylund was arrested for driving under the influence in August 2013, and consented to a warrantless blood test incident to his arrest after being read the North Dakota implied consent advisory. The implied consent advisory states that as a condition of operating a motor vehicle on a highway in North Dakota, a driver consents to taking a test to determine whether the driver is under the influence of alcohol or drugs, that North Dakota law requires the driver to take a breath screening test and a chemical test to determine whether the driver is under the influence of alcohol or drugs, and that refusal to take the test as directed by a law enforcement officer is a crime punishable in the same manner as driving under the influence. The advisory also states that refusal to take the test as directed by a law enforcement officer may result in revocation of a driver's license. The result of Beylund's warrantless blood test indicated a blood-alcohol level above the legal limit, and he requested an administrative hearing under N.D.C.C. § 39-20-05 on the Department's intention to suspend his driver's license. Beylund did not testify at the administrative hearing. The Department suspended his driver's license for two years, concluding the arresting officer had reasonable grounds to believe Beylund was driving under the influence of alcohol, Beylund was arrested and tested under N.D.C.C. ch. 39-20, and the test results showed a blood-alcohol concentration above the legal limit.

[¶3] We affirmed the Department's license suspension in Beylund v. Levi, 2015 ND 18, 859 N.W.2d 403, ¶ ¶ 12-30, ruling Beylund's consent to the warrantless blood test was voluntary and statutes criminalizing the refusal to submit to a chemical test did not violate a driver's rights under the Fourth Amendment and State v. Birchfield, 2015 ND 6, 858 N.W.2d 302, which affirmed a criminal conviction for refusing a warrantless blood test incident to a lawful arrest for driving under the influence.

[¶4] The United States Supreme Court granted petitions for writ of certiorari by Beylund, Danny Birchfield, and a Minnesota petitioner, William Bernard1, and the Supreme Court consolidated the cases for argument " to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream." Birchfield v. North Dakota, 136 S.Ct. at 2172. The Court held the Fourth Amendment permits warrantless breath tests incident to a lawful arrest for drunk driving, but absent another exception to the warrant requirement, does not permit warrantless blood tests incident to a lawful arrest for drunk driving. Id. at 2184-85. The Court reversed Birchfield's criminal conviction for refusing a warrantless blood test incident to a lawful arrest for driving under the influence and affirmed Bernard's criminal conviction for refusing a warrantless breath test incident to a lawful arrest for driving while impaired. Id. at 2186. In addressing Beylund's administrative license suspension, the Supreme Court said this Court had held Beylund's consent to the warrantless blood test was voluntary on the erroneous assumption the State could permissibly compel both warrantless blood and breath tests incident to an arrest and remanded to this Court for further proceedings to reevaluate the voluntariness of his consent under the totality of all the circumstances given the partial inaccuracy of the officer's advisory about a driver's obligation to undergo chemical testing. Id. at 2186-87. The Court said: If the court on remand finds that Beylund did not voluntarily consent, it will have to address whether the evidence obtained in the search must be suppressed when the search was carried out pursuant to a state statute, see Heien v. North Carolina, 574 U.S. __, __ - __, 135 S.Ct. 530, 537-539, 190 L.Ed.2d 475 (2014), and the evidence is offered in an administrative rather than criminal proceeding, see Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363-364, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). And as Beylund notes, remedies may be available to him under state law. See Brief for Petitioner in No. 141507, pp. 1314.

Birchfield, at 2186-87 n.9.

B

[¶5] Douglas Wojahn was arrested for driving under the influence in December 2013, and consented to a warrantless blood test incident to his arrest after being read the implied consent advisory. The result of Wojahn's warrantless blood test revealed a blood-alcohol level above the legal limit, and he requested an administrative hearing under N.D.C.C. § 39-20-05 on the Department's intention to suspend his driver's license. Wojahn testified at the administrative hearing he " felt obligated" to take the warrantless blood test and did not take it " freely and voluntarily." He also testified he did not think he had a choice and felt coerced. The Department suspended Wojahn's license for 91 days, concluding the arresting officer had reasonable grounds to believe Wojahn was driving under the influence, Wojahn was placed under arrest and tested under N.D.C.C. ch. 39-20, and the test results showed a blood-alcohol concentration above the legal limit.

[¶6] We summarily affirmed Wojahn's suspension under our precedent holding statutes criminalizing a driver's refusal to submit to a chemical test did not violate a driver's rights under the Fourth Amendment. Wojahn v. Levi, 2015 ND 50, ¶ 1, 861 N.W.2d 173 (citing Birchfield, 2015 ND 6, ¶ ¶ 11-17, 858 N.W.2d 302, and Beylund, 2015 ND 18, ¶ ¶ 14-30, 859 N.W.2d 403). The United States Supreme Court granted Wojahn's petition for writ of certiorari and remanded to this Court for consideration in light of Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 560.

C

[¶7] On remand from the United States Supreme Court, we consolidated the two cases for reargument and directed Beylund, Wojahn, and the Department to submit briefs on the following issues: (1) what forum should determine the findings of fact regarding the voluntariness of consent to the warrantless blood test under the remand language of Birchfield v. North Dakota for the state court to reevaluate consent and taking into...

To continue reading

FREE SIGN UP