Brewer v. Ziegler

• Decision Date: 20 December 2007
• Docket Number: No. 20070152.,20070152.
• Citation: 2007 ND 207,743 N.W.2d 391
• Parties: Nancy Juanita BREWER, Petitioner and Appellant v. Francis G. ZIEGLER, Director, Department of Transportation, Respondent and Appellee.
• Court: North Dakota Supreme Court

743 N.W.2d 391

2007 ND 207

Nancy Juanita BREWER, Petitioner and Appellant v. Francis G. ZIEGLER, Director, Department of Transportation, Respondent and Appellee.

No. 20070152.

Supreme Court of North Dakota.

December 20, 2007.

Mark A. Friese (argued) and Timothy Q. Purdon (appeared), Vogel Law Firm, Fargo, for petitioner and appellant.

Andrew Moraghan (argued) and Michael Trent Pitcher (appeared), Office of Attorney General, Bismarck, for respondent and appellee.

CROTHERS, Justice.

[¶ 1] Nancy Brewer appealed from a district court judgment affirming the Department of Transportation's ("Department") suspension of Brewer's driving privileges for 91 days. We hold Brewer's license was suspended in accordance with the law, and we affirm.

I Facts

[¶ 2] On October 29, 2006, Highway Patrolman Robert Arman observed a van pull off Main Avenue in West Fargo onto a "field or abandoned parking lot." Arman was at that time responding to another call in Casselton. When he returned about 30 minutes later, he noticed the van was still parked in the lot, and he decided to approach the van to "see if everything was okay." When he arrived, Nancy Brewer was standing outside the vehicle and her husband, wearing a seatbelt in the front passenger seat, was leaning outside the vehicle with "vomit on his face." Nancy Brewer told the officer her husband was sick because he had too much to drink at dinner. She also told the officer she had consumed one drink. Arman smelled a strong odor of alcohol while talking to Nancy Brewer, and he noticed she had red and bloodshot eyes. He administered a horizontal gaze nystagmus test ("HGN"), which she failed. Brewer then consented to take an SD-2 screening breath test, which reflected she had a blood alcohol concentration above the legal limit. Arman placed Brewer under arrest for being in actual physical control of a vehicle while under the influence of intoxicating liquor, in violation of N.D.C.C. § 39-08-01. An Intoxilyzer test was later conducted, also indicating a blood alcohol level above the legal limit.

[¶ 3] The Department subsequently suspended Brewer's license for 91 days. She requested and received a hearing on the suspension, which was upheld by the hearing officer and the district court.

II Standard of Review

[¶ 4] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of an administrative suspension of a driver's license. Johnson v. North Dakota Dep't of Transp., 2004 ND 148, ¶ 5, 683 N.W.2d 886. We exercise a limited review in appeals involving driver's license suspensions, and we affirm the 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.

Id.; N.D.C.C. § 28-32-46. "If the hearing officer's findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law, we will not disturb the decision." Borowicz v. North Dakota Dep't of Transp., 529 N.W.2d 186, 187 (N.D.1995). "We will `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.'" Id. (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979)). "When an `appeal involves the interpretation of a statute, a legal question, this Court will affirm the agency's order unless it finds the agency's order is not in accordance with the law.'" Harter v. North Dakota Dep't of Transp., 2005 ND 70, ¶ 7, 694 N.W.2d 677 (quoting Phipps v. North Dakota Dep't of Transp., 2002 ND 112, ¶ 7, 646 N.W.2d 704). The "interpretation of a statute is a question of law fully reviewable on appeal." State v. Fasteen, 2007 ND 162, ¶ 8, 740 N.W.2d 60.

III Jurisdiction to Arrest

[¶ 5] Brewer asserts Highway Patrolman Arman did not have jurisdiction to arrest her in a privately owned lot, because the patrolman's geographical jurisdiction only extends to state property and highways. A law enforcement officer acting outside the officer's jurisdiction is without official capacity and without official power to arrest. State v. Demars, 2007 ND 145, ¶ 21, 738 N.W.2d 486; State v. Littlewind, 417 N.W.2d 361, 363 (N.D. 1987); see also Davis v. North Dakota Dep't of Transp., 467 N.W.2d 420, 423 (N.D.1991).

[¶ 6] The powers of highway patrol officers are specified under N.D.C.C. § 39-03-09, which provides in relevant part:

The superintendent and each member of the highway patrol shall have the power:

1. Of a peace officer for the purpose of enforcing the provisions of this title relating to operators' licenses, the provisions of title 24 relating to highways, and of any other law regulating the operation of vehicles or the use of the highways, and in addition the highway patrol shall enforce all laws relating to the use or presence of alcoholic beverages in motor vehicles.

2. To make arrests upon view and without warrant for any violation committed in the person's presence of any of the provisions of this title relating to operators' licenses, or of title 24 relating to highways or to other laws regulating the operation of vehicles or the use of the highways.

....

11. To exercise general police powers over all violations of law committed on state property.¹

12. To exercise general police powers over all violations of law committed in their presence upon any highway and within the highway right of way or when in pursuit of any actual or suspected law violator.

[¶ 7] We must construe this statute to determine if Arman had authority to arrest Brewer in the private lot. "The primary purpose of statutory construction ... is to ascertain legislative intent." Dimond v. State Board of Higher Educ., 2001 ND 208, ¶ 8, 637 N.W.2d 692. Legislative intent must initially "`be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.'" VanKlootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 12, 665 N.W.2d 679 (quoting Public Serv. Comm'n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186).

[¶ 8] Under N.D.C.C. § 39-03-09(11) and (12), the general powers of highway patrol officers extend over violations of law committed on state property or upon any highway or highway right-of-way. Referring to these subsections, Brewer asserts a highway patrol officer does not have jurisdiction to arrest a person who is not at the time of arrest located on a highway or state property. Brewer has too narrowly construed the powers given highway patrol officers under N.D.C.C. § 39-03-09.

[¶ 9] Under N.D.C.C. § 39-03-09(1) highway patrol officers have the power of peace officers for the purpose of enforcing the provisions of title 39 and for enforcing "all laws relating to the use or presence of alcoholic beverages in motor vehicles." Under N.D.C.C. § 39-03-09(2) highway patrol officers also have authority to make arrests for any violation committed under title 39 in their presence.

[¶ 10] "`Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence.'" VanKlootwyk, 2003 ND 112, ¶ 12, 665 N.W.2d 679 (quoting Wimbledon Grain Co., 2003 ND 104, ¶ 21, 663 N.W.2d 186). To determine whether Arman had authority to arrest Brewer while she was located in the vacant West Fargo lot, we must construe Arman's express powers under N.D.C.C. § 39-03-09, in harmony with this Court's interpretation of conduct prohibited under N.D.C.C. § 39-08-01.

[¶ 11] In State v. Novak, 338 N.W.2d 637, 640 (N.D.1983), this Court concluded N.D.C.C. §§ 39-08-01 and 39-10-01, construed together, prohibit a person from being in actual physical control of a vehicle while under the influence of alcohol on private property and state highways. In reaching that conclusion, this Court stated, "to do otherwise `... would defeat the purpose of the statute which seeks to protect all against the real danger caused by drunken drivers whether on the highway, a parking lot or elsewhere within the state.'" Novak, at 640 (quoting State v. Valeu, 257 Iowa 867, 134 N.W.2d 911, 913 (1965)). In Wiederholt v. North Dakota Dep't of Transp., 462 N.W.2d 445, 451 (N.D.1990), this Court followed Novak and applied the statute's prohibition to a driver whose vehicle was located in a private farmyard.

[¶ 12] Under the Novak and Wiederholt precedent, an individual who is in actual physical control of a vehicle while under the influence of alcohol, whether located on a public highway or on private property, is in violation of the prohibited conduct under N.D.C.C. § 39-08-01. We conclude a highway patrol officer, who has the express power under N.D.C.C. § 39-03-09 to enforce the provisions of title 39 and to enforce all laws relating to the use or presence of alcoholic beverages in motor vehicles, has the concomitant power and jurisdiction to arrest a person who is located on private property while violating the provisions of those laws. We, therefore, hold Highway Patrolman Arman had jurisdiction and authority to arrest...