Agnew v. Hjelle

• Decision Date: 27 March 1974
• Docket Number: No. 8970,8970
• Citation: 216 N.W.2d 291
• Parties: Allan M. AGNEW, Petitioner-Appellant, v. Walter R. HJELLE, Highway Commissioner, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 291

216 N.W.2d 291

Allan M. AGNEW, Petitioner-Appellant, v. Walter R. HJELLE, Highway Commissioner, Appellee.

Civ. No. 8970.

Supreme Court of North Dakota.

March 27, 1974.

Syllabus by the Court

1. The provisions of the Administrative Agencies Practices Act, Chapter 28--32, N.D.C.C., are applicable to orders of revocation issued by the Commissioner under Section 39--20--04, N.D.C.C.

2. Under the provisions of Section 28--32--21, N.D.C.C., the supreme court may review the judgment of the district court in an appeal from a decision of a State administrative agency.

3. Our review of the facts on appeal from a district court order reviewing an administrative order is limited to determining whether there is substantial evidence in the record to support the findings of fact of the administrative agency.

4. Under Section 39--20--04, N.D.C.C., the police officer's affidavit must affirmatively show three elements:

a) That he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor;

b) That the person was placed under arrest;

c) That he refused to submit to the test or tests.

5. The scope of review of the administrative hearing under Section 39--20--05, N.D.C.C., is limited to the three elements that the police officer's affidavit must cover under Section 39--20--04, N.D.C.C.

6. That an affidavit was signed without the recitation of an oral oath and that in its preprinted part it contained a statement not pertinent to this case do not prevent its use in conjunction with Section 39--20--04, N.D.C.C., nor make the revocation proceedings defective.

7. For reasons stated in the opinion, we affirm the order of the district court affirming the order of the Highway Commissioner.

Christensen, Christensen & Bear, Bismarck, for petitioner-appellant.

Vernon R. Pederson, Special Asst. Atty. Gen., Bismarck, for appellee.

ERICKSTAD, Chief Justice.

This is an appeal from an order of the District Court of the Fourth Judicial District, Burleigh County, entered September 14, 1973, which affirmed an administrative order entered after hearing on July 5, 1973, revoking the driver's license of the petitioner-appellant, Allan M. Agnew (hereinafter Agnew), for refusing to submit to a breathalyzer test under the Implied Consent Law, Chapter 39--20, N.D.C.C.

Agnew was arrested June 13, 1973, for operating a motor vehicle while under the influence of intoxicating liquor. The arresting officer, Richard Tessier of the Bismarck Police Department, testified at the administrative revocation hearing conducted pursuant to Section 39--20--05, N.D.C.C., by Breen Kennelly, hearing officer, acting as agent of the appellee, Walter R. Hjelle, the State Highway Commissioner (hereinafter Commissioner), that from the patrol car in which he was following Agnew he observed Agnew driving his pickup east on Broadway in the city of Bismarck and that the pickup seemed to be moving erratically from the soft shoulder of the road to the middle of the travelled portion and back again. Tessier further testified that after observing Agnew's pickup weave from the travelled portion of the road to the shoulder and back again to the travelled portion several times, he flipped on his red light with the intention of stopping it. Officer Tessier testified that when the pickup stopped, Agnew had trouble finding his driver's license and that Agnew went through his wallet twice before finding it. The officer further testified he saw Agnew's driver's license the first time Agnew looked through his wallet, but that Agnew went by it. At this point, Tessier asked Agnew to step out of the car and walk to the rear of the vehicle, off the travelled portion of the road. Tessier testified Agnew stumbled slightly getting out of the pickup and as he walked to the tailgate area of the pickup, where he stopped to support himself by leaning against the tailgate. Agnew several times refused to perform coordination tests requested by Tessier, such as the balance test and walking a straight line heel to toe. Tessier also testified there was a strong odor of alcohol emanating from Agnew, that Agnew refused to stand free from the pickup without support, and refused to look Tessier straight in the eyes so he could use the flashlight to check his pupillary reaction. At this time Tessier informed Agnew he was under arrest for driving while intoxicated, and Agnew was placed in the patrol car and taken to the police station. On the way to the station Agnew was given the Miranda warnings and asked if he would consent to a breathalyzer test. Agnew would only state he wanted to speak with his attorney. Once at the station, Agnew was repeatedly asked if he would consent to the test, but he continued to maintain he would do nothing until he talked to his attorney. Agnew was allowed to call his attorney, who also happened to be the Bismarck City Prosecutor.

Tessier testified that once the City Prosecutor arrived, Agnew was given the opportunity to confer with him. It was after this conference that Tessier again requested Agnew to submit to the test, whereupon Agnew said, 'No, I'm not going to take the test.' Shortly thereafter Agnew was requested to walk a white line painted on the floor of the station so that the police could videotape his efforts. This Agnew also refused to do.

On cross-examination, Tessier testified he overheard the City Prosecutor tell Agnew that because he was the City Prosecutor he could neither represent nor advise Agnew. Agnew made no further request for counsel, the test was never administered, Agnew posted his own bond, and called a friend to take him home. Tessier conceded on cross-examination that the affidavit required by Section 39--20--04, N.D.C.C., was prepared by him that same evening but not signed and notarized until two days later. This affidavit was marked as an exhibit and introduced into evidence at the hearing.

Officer Udland testified he heard Tessier place Agnew under arrest, that Agnew insisted upon calling his attorney, and that Udland was present at the police station when Agnew refused to take the test.

Agnew did not testify at the hearing, on advice of counsel. The only testimony presented at the hearing was that of Tessier and Udland.

Agnew states the issues as follows:

'I. If the affidavit which puts the revocation machinery into motion is not properly shown to, may it be used as the basis for the revocation of an individual's driver's license?

'II. If the affidavit is properly sworn to and contains material and false statements, may it be used as the basis for the revocation of an individual's driver's license?

'III. Does the fact that the appellant was misinformed as to the effect of a refusal and permitting him to have counsel, when, in fact, he did not receive counsel result in a knowledgeable refusal to take a breathalyzer test within the requirements of 39--20--05, NDCC?'

One further issue is raised in the State's brief: whether this court has jurisdiction to hear the instant appeal since the only judicial review provided for in Section 39--20--06, N.D.C.C., is an appeal from the administrative hearing to the district court. The State maintains that no review in the supreme court is authorized.

Before dealing with the issues raised by Agnew, we will address the State's jurisdictional challenge.

The provisions of the Administrative Agencies Practices Act, Chapter 28--32, N.D.C.C., are applicable to orders of revocation issued by the Commissioner under Section 39--20--04, N.D.C.C. In the Administrative Agencies Practices Act specific provision is made for appeals to the supreme court in cases such as the one at bar.

'28--32--21. Review in supreme court.--The judgment of the district court in an appeal from a decision of an administrative agency may be reviewed in the supreme court on appeal in the same manner as any case tried to the court without a jury may be reviewed, except that the appeal to the supreme court must be taken within three months after the service of the notice of entry of judgment in the district court.' N.D.C.C.

Our review of fact-questions in such cases is limited to determining whether there is substantial evidence in the record to support the hearing officer's findings of fact. Borman v. Tschida, 171 N.W.2d 757 (N.D. 1969).

Agnews's first two issues on appeal to this court, in essence, ask whether the affidavit the arresting officer submits to the Highway Commissioner pursuant to Section 39--20--04, N.D.C.C., can be used validly by the Commissioner in making a determination to revoke a driver's license, if it is not properly sworn to or if it contains false statements.

Section 39--20--04, N.D.C.C., reads in part:

'Revocation of privilege to drive motor vehicle upon refusal to submit to chemical testing.--If a person under arrest refuses to submit to chemical testing, none shall be given, but the state highway commissioner, upon the receipt of a sworn report of the law enforcement officer, forwarded by the arresting officer within five days after the refusal, showing that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor, and that the person had refused to submit to the test or tests, shall revoke his license or permit to drive and any nonresident operating privilege for a period of six months; * * *' Under Section 39--20--04, N.D.C.C., the police officer's affidavit must affirmatively show three elements:

1) That he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor;

2) That the person was placed under arrest;

3) That he refused to submit to the test or tests.

Upon...