Beylund v. Levi

• Decision Date: 12 February 2015
• Docket Number: No. 20140133.,20140133.
• Citation: 859 N.W.2d 403
• Parties: Steve Michael BEYLUND, Petitioner and Appellant v. Grant LEVI, Director of the Department of Transportation, Respondent and Appellee.
• Court: North Dakota Supreme Court

859 N.W.2d 403

Steve Michael BEYLUND, Petitioner and Appellant

v.Grant LEVI, Director of the Department of Transportation, Respondent and Appellee.

No. 20140133.

Supreme Court of North Dakota.

Feb. 12, 2015.

Rehearing Denied March 24, 2015.

Thomas F. Murtha IV, Dickinson, ND, for petitioner and appellant.

Douglas B. Anderson, Office of Attorney General, Bismarck, ND, for respondent and appellee.

Opinion

McEVERS, Justice.

[¶ 1] Steve Michael Beylund appeals from a district court judgment affirming a Department of Transportation decision suspending his driving privileges for two years. We affirm concluding Beylund voluntarily consented to the chemical blood test administered by the police officer, and the criminal refusal statute does not violate Beylund's right under the Fourth Amendment or N.D. Const. art. I, § 8, nor does it violate the Fourth Amendment under the doctrine of unconstitutional conditions. We decline to address Beylund's argument regarding the legality of the stop because the issue was not sufficiently articulated in Beylund's specifications of error.

I

[¶ 2] On August 10, 2013, a Bowman police officer was dispatched to a call of an unwanted person. The police officer observed a vehicle that matched the given description of the unwanted person's vehicle, although the police officer testified that he “didn't think anything of that at the time.” The police officer observed the vehicle nearly hit a stop sign while making a right hand turn into a driveway. The vehicle then stopped, partially in the roadway. The police officer testified he pulled up and stopped behind the vehicle, without activating his patrol car's emergency lights, and approached the vehicle “to make sure everything was fine with the individual or what was going on.”

[¶ 3] According to the police officer's testimony, when he approached the vehicle, he noticed an empty wine glass in the center console and an odor of alcohol emanating from the vehicle. The police officer returned to his patrol car to activate its amber warning lights. The police officer requested Beylund exit the vehicle, but he refused, until the police officer opened the door and commanded him to exit. Beylund struggled with his balance and was generally uncooperative. Beylund refused all field sobriety tests, claiming he had a “bad leg.” Beylund agreed to take an onsite screening test, but failed to provide an adequate breath sample. The police officer then arrested Beylund and transported him to the hospital. At the hospital, the police officer read the implied consent advisory to Beylund, and Beylund agreed to take a chemical blood test. A blood sample was collected and submitted to the state laboratory. The test results showed an alcohol concentration of 0.250 g/100ml.

[¶ 4] In September 2013, a hearing was held before a Department of Transportation hearing officer. At the conclusion of the hearing, the hearing officer found the police officer had reasonable grounds to believe Beylund had been driving a vehicle while under the influence of intoxicating liquor in violation of N.D.C.C. § 39–08–01. Accordingly, the hearing officer suspended Beylund's driving privileges for two years.

[¶ 5] Beylund petitioned for reconsideration of the hearing officer's decision. Beylund argued the blood test was an unconstitutional warrantless search, without a valid exception to the warrant requirement, and North Dakota's implied consent law violates the unconstitutional conditions doctrine. The hearing officer granted Beylund's petition for reconsideration, but denied relief.

[¶ 6] Beylund filed a notice of appeal and specifications of error with the clerk of district court, appealing the hearing officer's suspension of his driving privileges. Beylund's specifications of error raised the same issues as his petition for reconsideration. However, in Beylund's appellant's brief to the district court, he also asserted the stop of his vehicle was illegal. The district court affirmed the hearing officer's decision. Beylund now appeals to this Court.

II

[¶ 7] “This Court reviews the Department's decision to suspend a person's driving privileges under the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32.” McCoy v. N.D. Dep't of Transp., 2014 ND 119, ¶ 6, 848 N.W.2d 659 (citing Painte v. Dir., Dep't of Transp., 2013 ND 95, ¶ 6, 832 N.W.2d 319). “We review the agency's decision on appeal from the district court. However, the district court's analysis is entitled to respect if it is sound.” Herrman v. N.D. Dep't of Transp., 2014 ND 129, ¶ 6, 847 N.W.2d 768 (citation omitted) (quotation marks omitted). An agency's decision is accorded great deference, when reviewed on appeal. McCoy, at ¶ 6. Under N.D.C.C. § 28–32–46, we must affirm an administrative agency's decision unless one of the following conditions applies:

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.

[¶ 8] “We do not make independent findings of fact or substitute our judgment for that of the agency.” Fossum v. N.D. Dep't of Transp., 2014 ND 47, ¶ 9, 843 N.W.2d 282. Rather, we solely determine “whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record.” Yellowbird v. N.D. Dep't of Transp., 2013 ND 131, ¶ 8, 833 N.W.2d 536. Once the facts are established, their significance presents a question of law, which we review de novo. Bell v. N.D. Dep't of Transp., 2012 ND 102, ¶ 20, 816 N.W.2d 786. The “standard of review for a claimed violation of a constitutional right is de novo.” Martin v. N.D. Dep't of Transp., 2009 ND 181, ¶ 5, 773 N.W.2d 190.

III

[¶ 9] Beylund argues his stop was illegal because law enforcement did not have a reasonable articulable suspicion and the community caretaker function does not apply. The Department argues Beylund waived his argument regarding the legality of the stop, by not including it in his specifications of error to the district court and, therefore, this Court should decline to consider this argument on appeal.

[¶ 10] Under N.D.C.C. § 28–32–42(4), a party appealing from the Department's decision to suspend driving privileges must file a notice of appeal and specifications of error. Midthun v. N.D. Workforce Safety Ins., 2009 ND 22, ¶ 7, 761 N.W.2d 572; Daniels v. Ziegler, 2013 ND 157, ¶ 7, 835 N.W.2d 852. The specifications of error must be reasonably specific, “detailing which matters are at issue, so as to alert the agency, other parties, and the court of the particular errors claimed.” Midthun, 2009 ND 22, ¶ 7, 761 N.W.2d 572 (citing Vetter v. N.D. Workers Comp. Bureau, 554 N.W.2d 451, 454 (N.D.1996) ). “Boilerplate specifications of error which are general enough to apply to any administrative agency appeal are not tolerated by this Court, and are ripe for dismissal.” Midthun, at ¶ 7 (citing Dettler v. Sprynczynatyk, 2004 ND 54, ¶ 15, 676 N.W.2d 799). This Court will not consider issues that are not enumerated in the specifications of error. Id.

[¶ 11] Here, Beylund did not include the legality of his stop argument in the specifications of error to the district court. Rather, he merely asserted he “reserves the right to make additional specifications of error pending receipt of the transcript of the administrative hearing.” Beylund's broad attempt to reserve the right to make additional specifications of error was not reasonably specific enough to effectively preserve the legality of the stop argument. In Isaak v. Sprynczynatyk, we concluded the phrase: “[a]ny other issues to be determined following a review of the hearing transcript” in a specifications of error was boilerplate because it was “so general it could apply to any administrative agency appeal.” 2002 ND 64, ¶¶ 4, 7, 642 N.W.2d 860. We similarly conclude Beylund's specifications of error attempting to reserve the right to make additional arguments after he received the administrative hearing transcript is “so general it could apply to any administrative agency appeal.” Id. at ¶ 7. Accordingly, Beylund waived his argument regarding the legality of his stop; therefore, we decline to address it.

IV

[¶ 12] Beylund argues his right to be free of unreasonable searches and seizures, under the Fourth Amendment and N.D. Const. art. I, § 8, was violated by the chemical test of his blood, under the State's implied consent law. Without specifically referencing any statute, he claims his consent to take the test was involuntary because he was coerced by the statute's penalties, which criminalize refusal. Beylund does not allege any coercive circumstances, other than the penalties under N.D.C.C. ch. 39–20.

[¶ 13] Beylund relies in part on Camara v. Mun. Court of the City & Cnty. of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), to support his premise that the criminal refusal law violates the Fourth Amendment. In Camara, a city ordinance authorized city employees to enter any building in the city after presenting proper credentials, and provided for a criminal penalty if the owner refused. Id. at 526–27, 87 S.Ct. 1727. The Supreme Court ruled the owner “had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for...