Christianson v. Dir., Dep't of Transp.

• Decision Date: 19 November 2020
• Docket Number: No. 20200114,20200114
• Citation: 951 N.W.2d 231
• Parties: Kyle Al CHRISTIANSON, Appellant v. DIRECTOR, DEPARTMENT OF TRANSPORTATION, Appellee
• Court: North Dakota Supreme Court

951 N.W.2d 231

Kyle Al CHRISTIANSON, Appellant

v.DIRECTOR, DEPARTMENT OF TRANSPORTATION, Appellee

No. 20200114

Supreme Court of North Dakota.

FILED NOVEMBER 19, 2020

Adam J. Justinger, Fargo, N.D., for appellant.

Michael T. Pitcher, Assistant Attorney General, Office of the Attorney General, Bismarck, N.D., for appellee.

Tufte, Justice.

[¶1] Kyle Christianson appeals from a district court's judgment affirming the North Dakota Department of Transportation's suspension of his driving privileges based on his conviction in Canada for a driving under the influence offense. Christianson argues that the Department lacked jurisdiction because the Canadian statute does not define an equivalent offense and that the hearing officer failed to provide a fair and impartial hearing. We affirm the Department's suspension and disqualification of Christianson's noncommercial and commercial driving privileges.

I

[¶2] In April of 2019, the Department issued Christianson an order of suspension for his noncommercial driver's license and an order of disqualification for his commercial driver's license based on his driving privileges having been suspended in another jurisdiction. Christianson requested an administrative hearing. At the end of the hearing, the hearing officer recommended Christianson's driving privileges be suspended. The Department adopted the recommendation and the district court affirmed. Christianson appealed that decision to this Court, and we reversed and vacated the judgment in April of 2020 because it was based on erroneously admitted evidence. Christianson v. N.D. Dep't of Transp. , 2020 ND 76, 941 N.W.2d 529.

[¶3] In August of 2019, the Department issued Christianson an order of suspension for his noncommercial driver's license and order of disqualification for his commercial license (together referred to as suspension) based on his conviction for driving under the influence of alcohol in another jurisdiction. Christianson again requested an administrative hearing. At the hearing, which was held telephonically, Christianson offered and the hearing officer accepted into evidence a printout of the Canadian criminal code. Additionally, the Department sought to admit a hearing file indicating Christianson had been convicted of driving under the influence of alcohol in Canada. Christianson objected to the hearing file, arguing it was not authentic and contained hearsay not subject to an exception. The hearing officer admitted the hearing file over Christianson's objection, concluding it was properly certified as a copy of the Department's official records.

[¶4] During oral arguments at the hearing, Christianson argued that the hearing officer should dismiss the action for failure to hold the hearing in Mountrail County, Christianson's county of residence. Christianson also argued that the Canadian statute did not define an equivalent offense, that there was no proof Christianson was afforded due process in his criminal proceedings in Canada, that Christianson's procedural due process rights were violated by the Department in this proceeding, and that the conviction was not received from a recognized foreign jurisdiction. The hearing officer found against Christianson on each argument and recommended that Christianson's non-commercial and commercial driving privileges be suspended indefinitely until he complied with all reinstatement requirements. The Department accepted the hearing officer's recommendations and the district court affirmed.

II

[¶5] Christianson argues the Canadian statute does not define an equivalent offense and therefore the Department's suspension of his driving privileges was not in accordance with the law.

[¶6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of the Department of Transportation's decision to suspend or revoke a driver's license. Haynes v. Dir., Dep't of Transp. , 2014 ND 161, ¶ 6, 851 N.W.2d 172. We review the Department's original decision. DeForest v. N.D. Dep't of Transp. , 2018 ND 224, ¶ 5, 918 N.W.2d 43. We give great deference to the Department's findings of fact. Id. We review the Department's legal conclusions de novo. Id. We must affirm the Department'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 [chapter 28-32] 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.

[¶7] "The director may suspend or revoke the operator's license of any resident of this state ... upon receiving notice of the conviction of that individual in a tribal court or in another state of an offense, which if committed in this state would be grounds for the suspension or revocation of an operator's license of an operator." N.D.C.C. § 39-06-27(1). Whether a North Dakota statute is equivalent to a foreign state's statute is a question of law fully reviewable by this Court.

Walter v. North Dakota State Highway Comm'r , 391 N.W.2d 155, 159 (N.D. 1986). This Court reviews questions of law de novo. Rounkles v. Levi , 2015 ND 128, ¶ 5, 863 N.W.2d 910.

[¶8] Under North Dakota law, "[a] person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply":

a. That person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.

b. That person is under the influence of intoxicating liquor.

c. That person is under the influence of any drug or substance or combination of drugs or substances to a degree which renders that person incapable of safely driving.

d. That person is under the combined influence of alcohol and any other drugs or substances to a degree which renders that person incapable of safely driving.

N.D.C.C. § 39-08-01(1)(a-d). Under Canadian law, "[e]veryone commits an offense who:

(a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined."

R.S.C. 1985, c. C-46, 320.14(1)(a-d).

[¶9] To support a suspension under N.D.C.C. § 39-06-27, a foreign statute need not be identical to the North Dakota statute; "the requirement is that the statutes be equivalent." Walter v. N.D. State Highway Comm'r , 391 N.W.2d 155, 160 (N.D. 1986). Under N.D.C.C. § 39-06.1-01(2), an "equivalent ordinance" is "an ordinance of a city, state, or other jurisdiction which is comparable to the cited statute and defines essentially the same offense, even if the language of the ordinance differs or procedural points or methods of proof differ." We consider "the basic elements of the offenses described in the two statutes" as well as the difference in the penalties in determining the equivalency of the two statutes. See Denault v. State , 2017 ND 167, ¶ 19, 898 N.W.2d 452 (quoting Walter , at 160, in analysis of "equivalent" offenses under N.D.C.C. § 12.1-32-15(3)(b) ). Which statute makes it more difficult to establish guilt is also relevant to determining the equivalency of the offenses. See Walter , at 159.

A

[¶10] Christianson first argues that the offenses are not equivalent because the level of impairment required to prove the offense is substantially different. The North Dakota statute requires that a person be "under the influence of intoxicating liquor" to be guilty of an offense. N.D.C.C. § 39-08-01(1)(b). In comparison, a person is guilty of an offense under the Canadian statute if that person's "ability to operate [a conveyance] is impaired to any degree by alcohol." R.S.C. 1985, c. C-46, 320.14(1)(a). Christianson argues that the language "to any degree" is a lower degree of impairment than North Dakota's "under the influence of intoxicating liquor" language.

[¶11] In State v. Berger , this Court stated:

The expression ‘under the influence of intoxicating liquor’ simply means having drunk enough to disturb the action of the physical or mental faculties so that they are no longer in their natural or normal condition ; that therefore, when a person is so affected by intoxicating liquor as to not possess that clearness of intellect and control of himself that he would otherwise have, he is ‘under the influence of intoxicating liquor’ and this is the common and well-known understanding of the expression.

State v. Berger , 2004 ND 151, ¶ 12, 683 N.W.2d 897 (citations omitted) (emphasis added). "It clearly is not the...