Borman v. Tschida

• Decision Date: 29 October 1969
• Docket Number: No. 8545,8545
• Citation: 171 N.W.2d 757
• Parties: Paul N. BORMAN, Petitioner and Appellant, v. A. L. TSCHIDA, Director of Safety Responsibility Division, representing Walter R. Hjelle, State Highway Commissioner, Respondent.
• Court: North Dakota Supreme Court

Page 757

171 N.W.2d 757

Paul N. BORMAN, Petitioner and Appellant, v. A. L. TSCHIDA, Director of Safety Responsibility Division representing Walter R. Hjelle, State Highway Commissioner, Respondent.

No. 8545.

Supreme Court of North Dakota.

Oct. 29, 1969.

1. When a person'd license to drive a motor vehicle has been revoked under the provisions of N.D.C.C. § 39--20--04 and thereafter the State Highway Commissioner or his authorized agent, following an administrative

hearing pursuant to § 39--20--05, affirms the revocation, the district court, on appeal from the decision of the Commissioner or his agent, and the Supreme Court, on appeal from the decision of the district court, shall affirm the decision of the Commissioner or his agent unless it is found that the evidence is insufficient to warrant the conclusion he reached. Accordingly, if there is substantial evidence to support the conclusion of the State Highway Commissioner or his agent, we must affirm his decision, under the provisions of the Implied Consent Law.

2. A peace officer may stop a motorist under circumstances short of probable cause for arrest.

3. For reasons stated in the opinion we conclude that there is substantial evidence to support the decision of the State Highway Commissioner or his agent and the decision of the district court that the highway patrolman had reasonable cause to believe at the time he arrested the petitioner that the petitioner was driving a motor vehicle upon a public highway while under the influence of intoxicating liquor.

4. An issue or contention not raised or considered in the lower court cannot be raised for the first time on appeal from a judgment or final order.

Lanier & Knox, Fargo, for appellant.

Helgi Johanneson, Atty. Gen., and Joseph A. Vogel, Jr., Sp. Asst. Atty. Gen., Bismarck, for respondent.

ERICKSTAD, Judge.

The basic issue in this case is whether Highway Patrolman Gerald Olson, in arresting Mr. Paul Borman on September 28, 1968, had reasonable grounds to believe that Mr. Borman had been driving a motor vehicle upon the public highway while he was under the influence of intoxicating liquor.

Under the provisions of N.D.C.C. § 39--20--01, the Implied Consent Law, any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of ch. 39--20, to a chemical test or tests of his blood, breath, saliva, or urine for the purpose of determining the alcoholic content of his blood.

Section 39--20--01 further provides that the test or tests shall be administered at the direction of a law enforcement officer 'only after placing such person except persons mentioned in section 39--20--03 under arrest and informing him that he is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor.'

The pertinent part of § 39--20--04, providing for the revocation of a person's driver's license upon his refusal to submit to chemical testing, reads:

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; * * *.

North Dakota Century Code.

By way of background information it should be noted that following Mr. Borman's refusal to submit to a breath test, the highway patrolman, within the time required by law, forwarded to the State Highway Commissioner the prescribed sworn report designated in the record before us as Exhibit A. In it Patrolman Olson gives the following reasons, actions, and circumstances constituting grounds which caused him to believe that the petitioner had been driving or was in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor: 'weaving on road, wouldn't stop till I blew siren, never seen red spot light in back window for 1 1/2 miles then stopped after I blew siren but stopped in center of exit off I--94, subject could not walk straight line without side stepping. Could smell mild odor of alcohol beverage.'

Following receipt of the report the Commissioner revoked Mr. Borman's driving privileges for six months. Thereafter Mr. Borman demanded and received an administrative hearing, pursuant to § 39--20--05. At the hearing before Mr. Joseph A. Vogel, Jr., Special Assistant Attorney General, as agent for the State Highway Commissioner, testimony was submitted on behalf of both the State and Mr. Borman. After all of the testimony was submitted, the hearing officer concluded that the revocation of Mr. Borman's driver's license should be sustained.

Thereafter Mr. Borman appealed to the district court, and upon a hearing based on the record before the administrative officer, the district court affirmed the decision of the administrative officer. It is from the order executed by the District Judge for the First Judicial District affirming that decision that this appeal is taken.

Section 39--20--05 provides that the scope of review of the administrative hearing shall cover the issues of whether a law enforcement officer had reasonable grounds to believe that 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; whether the person was placed under arrest; and whether he refused to submit to the test or tests. The petitioner asserts in his main brief that the sole question for determination in this case, because of a stipulation entered into between the parties, is whether there was reasonable cause at the time of the arrest for the officer to believe that the petitioner was under the influence of intoxicating liquor.

Section 39--20--06, relating to judicial review, provides that the court shall affirm the decision of the Commissioner or his authorized agent unless it finds the evidence insufficient to warrant the conclusion he reached.

We do not believe that our review is any broader than that of the trial court, and thus, as we stressed in the recent case of George E. Haggart, Inc. v. North Dakota Workmen's Compensation Bureau, 171 N.W.2d 104 (N.D.1969), an appeal from a decision of another administrative agency, judicial review of findings of fact and expert judgments of an administrative agency acting within its statutory authority is extremely limited.

Accordingly, if there is substantial evidence to support the conclusion of the State Highway Commissioner or his agent, we must affirm his decision, under the provisions of the Implied Consent Law.

It is interesting to note that in 1968 the Supreme Court of New Jersey, in a case involving not an implied consent act but a decision of the director of motor vehicles suspending a person's driver's license upon a finding that he operated his automobile in a careless manner, overruled its Appellate Court Division, saying that the majority of that court improperly weighed the evidence in the case, thereby exceeding the appellate court's limited function of determining whether the administrative finding was based on substantial evidence in the record as a whole. David v. Strelecki, 51 N.J. 563, 242 A.2d 371 (1968), cert. denied 393 U.S. 933, 89 S.Ct. 291, 21 L.Ed.2d 269.

As Mr. Borman contends that the patrolman did not have reasonable cause to believe that the petitioner was driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, the testimony relative to this issue given at the administrative hearing must be reviewed to determine whether there is substantial evidence to support the administrator's decision.

Patrolman Olson testified that on September 28, 1968, at 11:50 p.m., he checked on a locked car which was parked on the exit of Interstate Highway 29 where it enters Interstate Highway 94 west of Fargo. While he was parked behind and slightly to the left of the locked car, with the motor of his patrol car running, two vehicles approached from the west. Part of his testimony follows:

A. * * * I was waiting for the check to come in on the radio, and two cars approached from the west, and the first one glided over to the left of the east bound lane of the highway--I--94--around me, but the car I checked on and the car that I was sitting directly behind this car * * *. And when the second car came along, I noticed it veered to the left real sharp and I heard squealing of tires, I thought it quite funny because the visibility to the left was clear enough so that he could see me sitting there because I had the flashers on my patrol unit going, but not the top light. So when his tires squealed, I thought there must be something wrong, so I followed him for a short distance, he seemed to have a five foot sway back and forth on the road in his lane, so I put the red spot light in the back window of his car, and flicked a couple times and received no response. I drove up beside him and used the fender light and still no response, so then I turned the siren on and he drove for quite a while and then at this point we were at the exit of 94 and 81, we exit right of 94 onto U.S. 81 and there the vehicle stopped on the exit onto 81 in the middle of the concrete road.

When asked approximately how far he had driven his vehicle from the time he had begun following the petitioner and using the lights until the petitioner stopped, he said, 'at least a mile and a half.'

Part of the patrolman's...