918 N.W.2d 43 (N.D. 2018), 20180140, DeForest v. North Dakota Department of Transportation

Docket Nº:20180140
Citation:918 N.W.2d 43, 2018 ND 224
Opinion Judge:Tufte, Justice.
Party Name:Jim Benjamin DEFOREST, Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant
Attorney:Justin J. Vinje, Bismarck, N.D., for appellee. Douglas B. Anderson, Assistant Attorney General, Bismarck, N.D., for appellant.
Judge Panel:Jerod E. Tufte, Daniel J. Crothers, Lisa Fair McEvers, Jon J. Jensen, Gerald W. VandeWalle, C.J.
Case Date:October 03, 2018
Court:Supreme Court of North Dakota

Page 43

918 N.W.2d 43 (N.D. 2018)

2018 ND 224

Jim Benjamin DEFOREST, Appellee

v.

NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant

No. 20180140

Supreme Court of North Dakota

October 3, 2018

Page 44

[Copyrighted Material Omitted]

Page 45

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

Justin J. Vinje, Bismarck, N.D., for appellee.

Douglas B. Anderson, Assistant Attorney General, Bismarck, N.D., for appellant.

OPINION

Tufte, Justice.

[¶ 1] The North Dakota Department of Transportation appealed a district court judgment reversing the Department’s decision to suspend Jim DeForest’s driving privileges. We reverse the district court’s judgment and reinstate the Department’s suspension of DeForest’s driving privileges for 91 days.

I

[¶ 2] In November 2017, Deputy Jared Lemieux stopped DeForest for exceeding the speed limit by ten miles per hour. During the stop, DeForest exhibited signs of intoxication. After conducting field sobriety tests, Lemieux arrested DeForest for driving under the influence of alcohol. Lemieux read DeForest Miranda warnings and a post-arrest implied consent advisory, omitting reference to criminal penalties for refusal of breath or urine tests. Lemieux then requested a blood test. Prior to Lemieux’s advisory and request, DeForest had asked for a chemical blood test. DeForest consented to a blood test.

[¶ 3] During the administrative hearing, DeForest objected to admission of the blood test result, arguing non-compliance with the required implied consent advisory procedure. The hearing officer admitted the blood test evidence over the objection and found Lemieux "read the implied consent advisory in accordance with N.D.C.C. section 39-20-01(3)(a)."

[¶ 4] DeForest appealed to the district court, arguing the implied consent advisory given was incomplete and thus the blood test evidence was inadmissible. The district court concluded the hearing officer erred in admitting the blood test evidence and reinstated DeForest’s driving privileges. The Department appeals.

II

[¶ 5] The standard of review for an administrative hearing to suspend or revoke a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Haynes v. Director, Dep’t of Transp., 2014 ND 161, ¶ 6, 851 N.W.2d 172. When a district court’s review of a department’s decision is on appeal before this Court, we review the department’s original decision. Id.

Our review is limited and we give great deference to the agency’s findings. We

Page 46 do not make independent findings of fact or substitute our judgment for that of the agency; instead, we determine whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record.

Id. (citations omitted). "Once the facts are established, their significance presents a question of law, which we review de novo." McCoy v. N.D. Dep’t of Transp., 2014 ND 119, ¶ 8, 848 N.W.2d 659 (citations and internal quotations omitted). 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 [chapter 28-32] 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. See also Haynes, at ¶ 6.

III

[¶ 6] The Department argues the blood test result is admissible under N.D.C.C. § 39-20-01(3). DeForest argues the test result is inadmissible under State v. O’Connor, in which this Court held that under § 39-20-01(3), a chemical test result was inadmissible because the officer did not provide a complete implied consent advisory. 2016 ND 72, ¶ 8, 877 N.W.2d 312. Section 39-20-01(3), N.D.C.C., was amended after O’Connor and before DeForest’s arrest. As of August 2017, and at all times relevant here, it states: a. The law enforcement officer shall inform the individual charged that North Dakota law requires the individual to take a chemical test to determine whether the individual is under the influence of alcohol or drugs and that refusal of the individual to submit to a test directed by the law enforcement officer may result in a revocation of the individual’s driving privileges for a minimum of one hundred eighty days and up to three years. In addition, the law enforcement officer shall inform the individual refusal to take a breath or urine test is a crime punishable in the same manner as driving under the influence. If the officer requests the individual to submit to a blood test, the officer may not inform the individual of any criminal penalties until the officer has first secured a search warrant.

b. A test administered under this section is not admissible in any criminal or administrative proceeding to...

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