Baillie v. Moore, 940092

• Decision Date: 05 October 1994
• Docket Number: No. 940092,940092
• Parties: Christopher BAILLIE, Appellant, v. Marshall MOORE, Director, ND Department of Transportation, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 748

522 N.W.2d 748

Christopher BAILLIE, Appellant, v. Marshall MOORE, Director, ND Department of Transportation, Appellee.

Civ. No. 940092.

Supreme Court of North Dakota.

Oct. 5, 1994.

Ralph A. Vinje, of Vinje Law Firm, Bismarck, for appellant.

Monte Lane Rogneby, Asst. Atty. Gen., Atty. General's Office, Bismarck, for appellee.

VANDE WALLE, Chief Justice.

Christopher Baillie appealed from a district court judgment upholding the Department of Transportation's one year revocation of Baillie's driver's license for refusing to take an intoxilyzer test. We reverse, because Baillie requested but was not given a reasonable opportunity to consult with an attorney and, for that reason, his failure to take the intoxilyzer test was not a refusal upon which his license could be revoked under Chapter 39-20, N.D.C.C.

The relevant facts in this case are undisputed. ¹ On November 1, 1993, Bismarck Police Officer Steve Kenner saw Baillie driving a vehicle in excess of the speed limit. Kenner stopped Baillie's vehicle and, upon detecting an odor of alcohol on Baillie's breath, conducted a series of field sobriety tests. Kenner then arrested Baillie for driving while under the influence of intoxicating liquor and transported him to the police station. Upon arriving there, Kenner gave Baillie an opportunity to use the telephone to call for whatever assistance he needed, explaining that Baillie would not be at the station very long and he should call for a ride to take him home. Thereafter, Kenner conducted additional physical sobriety tests and then asked Baillie to submit to an intoxilyzer examination. Baillie responded that he would not take the test without an attorney. Three times Kenner requested Baillie to take an intoxilyzer test, and each time Baillie responded that he would not consent to take a test without an attorney. Kenner deemed Baillie's response to be a refusal rather than a request to consult an attorney, and no intoxilyzer test was given.

Baillie's driver's license was ultimately revoked by the Department for a period of one year, under Sections 39-20-04 and 39-20-05, N.D.C.C., for his refusal to take the intoxilyzer examination. Baillie appealed to the district court, which affirmed the revocation of his license. Baillie then appealed to this court.

Our review of a district court decision on an administrative revocation of a driver's license is governed by the Administrative Agency's Practice Act, under Chapter 28-32, N.D.C.C. We review the record of the administrative agency, not the district court's ruling. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593 (N.D.1992). Under Section 28-32-19, N.D.C.C., we must affirm the agency's decision unless we conclude that:

1. The order is not in accordance with the law;

2. The order 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; or

6. The conclusions of law and order of the agency are not supported by its findings of fact.

On appeal, Baillie asserts that he was denied a reasonable opportunity to consult with an attorney before deciding whether to consent to take an intoxilyzer test and that his failure to take the test does not, therefore, constitute a refusal upon which to revoke his license.

The majority of this court, in Kuntz v. State Highway Commissioner, 405 N.W.2d 285, 290 (N.D.1987), held that a person arrested for driving under the influence of intoxicating liquor has a qualified statutory right to consult with an attorney before deciding whether to submit to a chemical test:

"We hold that if an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test. If he is not given a reasonable opportunity to do so under the circumstances, his failure to take the test is not a refusal upon which to revoke his license under Chapter 39-20, N.D.C.C."

The Department claims Baillie's statement that he would not take the test without an attorney was not a request to telephone or consult with an attorney and, consequently, Officer Kenner was under no obligation at that time to give Baillie an opportunity to consult with an attorney....