Asbridge v. North Dakota State Highway Com'r, 9720

Decision Date30 April 1980
Docket NumberNo. 9720,9720
Citation291 N.W.2d 739
PartiesDarold A. ASBRIDGE, Plaintiff and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Defendant and Appellee. Civ.
CourtNorth Dakota Supreme Court

Baer & Asbridge, Bismarck, for plaintiff and appellant; argued by Richard B. Baer, Bismarck.

Robert E. Lane, Sp. Asst. Atty. Gen., Bismarck, for defendant and appellee.

ERICKSTAD, Chief Justice.

This is an appeal from a judgment of the District Court for Burleigh County which affirmed an administrative decision revoking the plaintiff's driver's license for six months for his refusal to submit to chemical testing. We affirm.

On January 28, 1978, at approximately 2:15 a. m., Officer Earl O'Connell of the Bismarck Police Department came upon a car parked at an angle on the side of a street in the City of Bismarck. The car's lights were on, the engine was running, and there was a man slumped down behind the steering wheel with his eyes closed. Officer O'Connell approached the car and rapped twice on the window before the man opened his eyes and rolled down the window. The officer asked the man behind the wheel for his driver's license, whereupon he learned that the individual's name was Darold A. Asbridge, the plaintiff in this appeal. O'Connell noticed that Asbridge's speech was slurred and he detected the odor of alcohol. When asked if he had been drinking, Asbridge told O'Connell he had.

Officer O'Connell then asked Asbridge to step out of the car and walk to the rear of the vehicle. O'Connell testified that when Asbridge stepped from the car, he stumbled and leaned against the car for support. O'Connell then had Asbridge get into the patrol car.

Inside the patrol car, Officer O'Connell asked Asbridge to submit to an on-site chemical screening test for the purpose of estimating the alcohol content of his blood. This chemical screening test is commonly referred to as an "ALERT" test. Asbridge failed the screening test and O'Connell thereafter placed him under arrest.

While driving to the police station, Officer O'Connell asked Asbridge on two occasions if he would submit to the taking of a breathalyzer test to determine the alcoholic content of his blood. Asbridge refused to take the test on both occasions. When they arrived at the police station, O'Connell again asked Asbridge to submit to a breathalyzer test, but he refused and requested to talk to an attorney.

Asbridge was allowed to call an attorney who arrived at the police station around 2:45 a. m. Asbridge and the attorney had a ten-minute private conference after which Asbridge signed the citation promising to appear in court at a later date and the two men left the station.

Officer O'Connell then returned to his patrol duties. Shortly thereafter, at approximately 3:00 a. m., O'Connell received a call from the police dispatcher asking him to return to the station. O'Connell testified that he returned to the police station around 3:20 a. m. At the station, Asbridge asked if he could take the test "out of courtesy", but O'Connell refused to administer the test because Asbridge had left the police station.

Officer O'Connell thereafter filed an affidavit with the defendant, the North Dakota State Highway Commissioner (hereinafter referred to as the Commissioner), pursuant to the requirements of Section 39-20-04, N.D.C.C., concerning Asbridge's refusal to submit to a chemical test. On February 2, 1978, Asbridge was properly notified of the State Highway Department's intent to suspend or revoke his driver's license for a period of six months. Asbridge was also given notice of his opportunity for a hearing on the matter. Section 39-20-05, N.D.C.C. 1 He requested a hearing by a letter dated February 15, 1978.

An administrative hearing was held in Bismarck on March 15, 1978, and Mr. Breen Kennelly, the administrative hearing officer, determined that Asbridge's driver's license should be revoked for a period of six months "for refusing to submit to a chemical test while in police custody and after being placed under arrest for being in physical control of a motor vehicle upon the public highways." Findings of fact, conclusions of law, and the decision were rendered on April 24, 1978.

Pursuant to statute, the decision of the administrative hearing officer was appealed to the District Court for Burleigh County on May 8, 1978. On November 14, 1979, a hearing was held, and on November 17, 1979, the district court issued its findings of fact, conclusions of law, and order for judgment which affirmed the decision of the administrative hearing officer. Judgment was entered on November 23, 1979, and Asbridge has appealed to this court from that judgment.

We have held that "(t)he 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." Agnew v. Hjelle, 216 N.W.2d 291, 294 (N.D.1974). Section 28-32-21 of the North Dakota Century Code authorizes this court to review a judgment which affirms an order revoking a driver's license under the implied consent law. It reads:

"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 provided in section 28-32-19, except that the appeal to the supreme court must be taken within sixty days after the service of the notice of entry of judgment in the district court."

Section 28-32-19, N.D.C.C., further provides:

"28-32-19. Scope of and procedure on appeal from determination of administrative agency. The court shall try and hear an appeal from the determination of an administrative agency without a jury and the evidence considered by the court shall be confined to the record filed with the court. If additional testimony is taken by the administrative agency or if additional findings of fact, conclusions of law, or a new decision shall be filed pursuant to section 28-32-18, such evidence, findings, conclusions, and decision shall constitute a part of the record filed with the court. After such hearing, the court shall affirm the decision of the agency unless it shall find that any of the following are present:

1. The decision or determination is not in accordance with the law.

2. The decision is in violation of the constitutional rights of the appellant.

3. 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 and decision of the agency are not supported by its findings of fact.

If the decision of the agency is not affirmed by the court, it shall be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the decision of the court."

Therefore, our scope of review is rather limited and involves a three-step process: (1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law? American State Bank of Williston v. State Banking Bd., 289 N.W.2d 222 (N.D.1980); see Bank of Hamilton v. State Banking Bd., 236 N.W.2d 921 (N.D.1976). Upon reviewing the evidence, this court must look to the record compiled before the administrative agency rather than to the findings of the district court. North Dakota Real Estate Commission v. Allen, 271 N.W.2d 593 (N.D.1978).

We recognize that in reviewing the findings of an administrative agency, we must exercise restraint. Allstate Ins. Co. v. Knutson, 278 N.W.2d 383 (N.D.1979). As we said in Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979):

"In construing the 'preponderance of the evidence' standard to permit us to apply the weight-of-the-evidence test to the factual findings of an administrative agency, we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record."

In the instant case, the scope of the administrative hearing held pursuant to Section 39-20-05, N.D.C.C., covered three issues:

(1) "whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor;"

(2) "whether the person was placed under arrest;" and

(3) "whether he refused to submit to the test or tests." Section 39-20-05, N.D.C.C.

After hearing the evidence, the administrative hearing officer, representing the Commissioner, concluded that (1) Officer O'Connell did have the necessary reasonable grounds to believe that Asbridge was in actual physical control of a motor vehicle while under the influence of intoxicating liquor on a street or highway in North Dakota; (2) Officer O'Connell placed Asbridge under arrest; and (3) Asbridge refused to submit to a chemical test of his breath to determine the alcoholic content of his blood. On review, we must determine whether or not the Commissioner's findings are supported by a preponderance of the evidence.


We said in Witte v. Hjelle, 234 N.W.2d 16 (N.D.1975), that the term "reasonable grounds", as used in Section 39-20-04, N.D.C.C., is synonymous with the terms "probable cause" and "reasonable cause". Probable cause exists where:

" 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that, an offense has been or is being committed. Carroll v. United States, 267 U.S....

To continue reading

Request your trial
72 cases
  • Beylund v. Levi, 20140133
    • United States
    • United States State Supreme Court of North Dakota
    • February 16, 2017
    ..." Williams v. North Dakota State Highway Com'r, 417 N.W.2d 359, 360 (N.D. 1987) [quoting Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739, 750 (N.D. 1980) ]. One of the purposes of our implied-consent law is "to provide an efficient means of gathering reliable evidence of intoxi......
  • State v. Suazo, 12771
    • United States
    • Court of Appeals of New Mexico
    • March 17, 1993
    ...Court has more recently indicated that it will strictly apply the criteria set forth in Lund v. Hjelle. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 750 (N.D.1980). In any event, there is no precedent for finding a cure two hours after a refusal, as occurred in this My chi......
  • Maisey v. North Dakota Dept. of Transp., 20090194.
    • United States
    • United States State Supreme Court of North Dakota
    • November 17, 2009 original). These criteria "must be strictly and rigidly adhered to." Id. at ¶ 14 (quoting Asbridge v. N.D. State Highway Comm'r, 291 N.W.2d 739, 750 [¶ 25] In Lund, the driver refused to submit to a blood test at a hospital. Lund, 224 N.W.2d at 554. Later at the police station, he change......
  • State v. Baxter, 20140325.
    • United States
    • United States State Supreme Court of North Dakota
    • April 28, 2015
    ...testing.Fossum v. North Dakota Dep't of Transp., 2014 ND 47, ¶ 16, 843 N.W.2d 282 (quoting Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 745 (N.D.1980) ). [¶ 10] Other courts have considered whether probable cause is constitutionally necessary to support a request for a pre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT