Bell v. N.D. Dep't of Transp., 20110201.

Decision Date17 May 2012
Docket NumberNo. 20110201.,20110201.
Citation2012 ND 102,816 N.W.2d 786
PartiesCecil H. BELL, Petitioner and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Henry H. Howe (argued), Grand Forks, ND, for petitioner and appellant.

Michael Trent Pitcher (argued), Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.

CROTHERS, Justice.

[¶ 1] Cecil H. Bell appeals a district court judgment affirming a North Dakota Department of Transportation decision revoking his driving privileges for one year. Bell argues he was denied his statutory right to consult with an attorney before deciding whether to submit to a chemical test. We affirm.

I

[¶ 2] On October 2, 2010, at approximately 6:27 p.m., North Dakota Highway Patrol Officer Dolf Oldenburg initiated a traffic stop after observing a motor home driven by Bell cross the fog line several times. Upon making contact with Bell, Oldenburg detected a strong odor of alcohol and observed Bell's eyes were glassy and his speech was slurred. At Oldenburg's request, Bell exited the motor home and got into the front passenger seat of Oldenburg's patrol vehicle. Oldenburg radioed North Dakota Highway Patrol Officer Adam Dvorak for assistance.

[¶ 3] At approximately 6:34 p.m., Dvorak arrived at the scene and took over the investigation. Dvorak moved Bell to his patrol vehicle, a sport utility vehicle with a police dog in the cargo area. Dvorak placed Bell in the front seat, and Bell agreed to perform the alphabet, backward count, finger count and horizontal gaze nystagmus tests. After administering the tests, Dvorak read Bell the onsite screening implied consent advisory and asked Bell to submit to the S–D5 onsite screening test. Bell refused to submit to the S–D5 but agreed to perform standardized field sobriety tests outside the patrol vehicle. Dvorak attempted to administer the one-leg-stand test, but Bell would not follow his instructions. At approximately 7:27 p.m., Dvorak arrested Bell for driving under the influence (“DUI”), handcuffed Bell and placed Bell in the back seat of his patrol vehicle. Dvorak and Oldenburg began securing Bell's motor home.

[¶ 4] At approximately 7:52 p.m., North Dakota Highway Patrol Officer Quentin McCart arrived at the scene. McCart sat in Dvorak's vehicle with Bell while Oldenburg and Dvorak finished securing the motor home. Dvorak returned to his patrol vehicle. Bell complained about the dog in Dvorak's vehicle, and Dvorak moved Bell to the back seat of McCart's patrol vehicle.

[¶ 5] At approximately 7:58 p.m., McCart left the scene to transport Bell to the Grand Forks County Correctional Center. During transport, McCart stopped to adjust Bell's handcuffs. McCart then continued the transport and at approximately 8:06 p.m., read Bell the chemical test implied consent advisory. Bell interrupted McCart repeatedly. McCart asked Bell to submit to an Intoxilyzer 8000 breath test. Bell did not affirmatively consent or refuse.

[¶ 6] When McCart and Bell arrived at the Correctional Center, Bell stated he would not submit to an Intoxilyzer test until he consulted an attorney. At approximately 8:09 p.m., Bell was moved inside the Correctional Center and given a telephone and a telephone book. Before making any calls, Bell asked for a glass of water. At approximately 8:23 p.m., Bell called a friend. Bell told the officers his friend was bringing an attorney to the Correctional Center. Dvorak asked if Bell would submit to the Intoxilyzer test. Bell stated he would not take the test before talking to an attorney. At 8:27 p.m., when the two-hour period for conducting the chemical test expired, Dvorak issued a Report and Notice, indicating Bell had refused to submit to the onsite screening test and the Intoxilyzer test.

[¶ 7] Bell requested an administrative hearing. The hearing officer made detailed findings regarding Bell's behavior following the traffic stop and stated, “Mr. Bell's behavior at the scene of the traffic stop, during transport and at the correctional center could reasonably be interpreted as intended to delay the investigation.” The hearing officer found Bell refused to submit to the onsite screening test and the Intoxilyzer test and revoked Bell's driving privileges for one year. Bell appealed to the district court. The district court affirmed.

II

[¶ 8] We exercise limited review of the administrative revocation of driving privileges under the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32. Wetzel v. N.D. Dep't of Transp., 2001 ND 35, ¶ 9, 622 N.W.2d 180. Our standard of review is the same standard applied by the district court. N.D.C.C. § 28–32–49. We must affirm the administrative 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 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 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.

III

[¶ 9] Bell argues two of the hearing officer's factual findings were not supported by a preponderance of the evidence. The State responds the hearing officer's findings were supported by the weight of the evidence. To determine whether an administrative agency's findings of fact are supported by a preponderance of the evidence, we do not substitute our own judgment for that of the agency, but instead determine whether a reasonable mind could have determined that the factual conclusions were proven by the weight of the evidence presented.” Wetzel, 2001 ND 35, ¶ 9, 622 N.W.2d 180.

A

[¶ 10] Bell argues the hearing officer's finding that Bell's behavior was intended to delay the investigation was not supported by the evidence presented at the administrative hearing. At the hearing, Oldenburg, Dvorak and McCart gave detailed accounts of Bell's behavior during the investigation. Dvorak testified that when he took over the investigation, Bell was “talking in circles” and that he spoke with Bell for approximately thirteen minutes before asking Bell to perform field sobriety tests in the patrol vehicle. Dvorak described Bell as “reluctant” to perform the tests and explained, “I would just try to redirect the conversation back toward my investigation versus ... he would redirect the conversation toward personal problems, and I would just try ... we just kind of would go around and round[.] Dvorak testified that after Bell performed the in-car tests, he asked Bell to submit to the onsite screening test and Bell continued to try to redirect the conversation:

“I went um ... we talked about the situation, about the preliminary breath test. He kept saying that he didn't want to take it. He would ... we would continue to go around in circles about ... he would say, well, I'm having a problem ‘cause of your dog, your canine. I said, well, would you like to go sit up with ... with Sgt. Oldenburg? He would say no. We'd go back to nervousness. We'd go back to the problem with his fiancée; it just would go round and round and round.”

Dvorak testified Bell stated he would not submit to the preliminary breath test but agreed to perform additional field sobriety tests. Dvorak testified Bell then refused to follow his instructions:

We went outside of the vehicle, and I began the instructions for the one-leg-stand test, and Mr. Bell would ... anytime I'd try to explain the test, Mr. Bell would ... go round and round in a circle type of conversation again, where we weren't getting anywhere. I would ... advise him to just relax, I'll tell you how to do the test, and when I started telling him about, you know, to ... to perform the test, you need to lift your foot six inches off the ground, and he said, well, how do I know what six inches is. I said, well, it's half a foot. Mr. Bell, then, basically, implied that I was trying to trick him by the measurement of six inches, and I just was done. I didn't want to even try anymore because it was just too hard.”

Dvorak testified that after attempting to administer the test, he arrested Bell for DUI and placed Bell in the back seat of his patrol vehicle.

[¶ 11] Dvorak testified he and Oldenburg then secured Bell's motor home. Oldenburg testified two dogs were inside the motor home. Oldenburg testified that he asked Bell what he would like done with the dogs and that Bell “wasn't uncooperative, but he really gave us no directions to what he would like done with the either the vehicle or the two dogs.” Oldenburg testified that after presenting Bell with his options several times, the officers decided to let the dogs out before returning them to the motor home, locking the motor home and leaving it on the side of the road. Dvorak testified after the motor home was secured, he returned to his patrol vehicle. Dvorak testified Bell complained the police dog was frightening him. Dvorak testified he asked Bell if he wanted to be transported in another vehicle, Bell responded he “want[ed] his rights observed” and Dvorak transferred Bell to McCart's patrol vehicle.

[¶ 12] McCart testified that he got into his vehicle and left the scene immediately after Bell was moved to his patrol vehicle and that Dvorak followed in his patrol vehicle. McCart testified that during transport, Bell complained of pain from the handcuffs and cried for help. McCart testified he stopped to adjust...

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