Dworshak v. Moore, 980086

• Decision Date: 15 September 1998
• Docket Number: No. 980086,980086
• Citation: 583 N.W.2d 799
• Parties: David DWORSHAK, Petitioner and Appellee, v. Marshall W. MOORE, Director, North Dakota Department of Transportation, Respondent and Appellant. Civil
• Court: North Dakota Supreme Court

Page 799

583 N.W.2d 799

1998 ND 172

David DWORSHAK, Petitioner and Appellee, v. Marshall W. MOORE, Director, North Dakota Department of

Transportation, Respondent and Appellant.

Civil No. 980086.

Supreme Court of North Dakota.

Sept. 15, 1998.

Andrew Moraghan (argued), Assistant Attorney General, Attorney General's Office, Bismarck, for respondent and appellant.

William A. Herauf (argued), of Reichert & Herauf, P.C., Dickinson, for petitioner and appellee.

MARING, Justice.

¶1 The North Dakota Department of Transportation (the Department) appeals a district court judgment that reversed a Department decision to revoke David Dworshak's driving privileges for his refusal to be chemically tested after his arrest for driving under the influence of alcohol. We reverse and remand for reinstatement of the administrative driving revocation.

I

¶2 On July 25, 1997, at 12:58 a.m., a Dickinson Police Officer stopped a vehicle driven by David Dworshak for erratic driving. As the officer called in the stop to the dispatcher, Dworshak got out of his vehicle and started walking toward the house in front of which he had stopped. The officer walked after Dworshak and asked him to step back to the patrol car. While walking back to the patrol car, the officer noticed the strong odor of an alcoholic beverage on Dworshak's breath. Dworshak failed three field sobriety tests, and the officer subsequently arrested Dworshak for driving under the influence of alcohol.

¶3 The officer transported Dworshak to a Dickinson hospital for a blood test. At the hospital, the officer informed Dworshak of the implied consent law. Dworshak requested to speak to an attorney and was permitted to do so. Dworshak subsequently refused to submit to the blood test. The officer then transported Dworshak to the law enforcement center, gave him a summons, and required him to surrender his driver's license. Dworshak was thereafter released from custody. Within approximately fifteen minutes after his release, the officer realized he forgot to issue Dworshak a temporary operator's permit. That same night the officer filled out the Report and Notice, which also contained the Temporary Permit.

¶4 The officer then attempted to track Dworshak down to issue the temporary operator's permit, but his efforts were hampered by Dworshak's failure to provide a current address on his driver's license. The officer testified he also made some unstructured attempts to locate Dworshak in Dickinson. On August 15, 1997, the officer finally located Dworshak and served the Report, Notice, and Temporary Permit, which notified Dworshak the Department intended to revoke his driver's license. This occurred twenty-one days after the officer made the initial arrest and took Dworshak's license. Dworshak timely requested a hearing.

¶5 On September 12, 1997, an administrative hearing was held where evidence revealed Dworshak had a prior 1996 implied consent violation. Based upon all the evidence presented at the hearing, the hearing officer revoked Dworshak's driving privileges for two years. Dworshak appealed the decision to the district court, which reversed the administrative revocation. The Department appeals to this Court.

II

¶6 The Administrative Agencies Practice Act, N.D.C.C. ch 28-32, governs review of an administrative decision to suspend or revoke a driver's license. Presteng v. Director, North Dakota Dep't of Transp., 1998 ND 114, p 5, 579 N.W.2d 212. We examine the record compiled before the agency, and we review the agency's decision, not the district court's decision. Greenwood v. Moore, 545 N.W.2d 790, 793 (N.D.1996). We must affirm the agency's decision unless:

1) a preponderance of the evidence does not support the agency's findings; 2) the agency's findings of fact do not support its conclusions of law and its decision; 3) the agency's decision violates the constitutional rights of the appellant; 4) the agency did not comply with the Administrative Agencies Practice Act in its proceedings; 5) the agency's rules or procedures have not afforded the appellant a fair hearing; or 6) the agency's decision is not in accordance with the law.

Id.

¶7 "This court exercises restraint when it reviews the findings of an administrative agency; we do not substitute our 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." Samdahl v. North Dakota Dep't. of Transp., Director, 518 N.W.2d 714, 716 (N.D.1994).

¶8 A motor vehicle operator on a highway in this state is deemed to have consented to a chemical test to determine his or her blood alcohol content if arrested for driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor. N.D.C.C. § 39-20-01; see Krabseth v. Moore, 1997 ND 224, p 7, 571 N.W.2d 146. Although a driver may refuse to submit to chemical testing, the consequences for such refusal are set forth under N.D.C.C. § 39-20-04(1), which provides in relevant part:

If a person refuses to submit to testing under section 39-20-01 or 39-20-14, none may be given, but the law enforcement officer shall immediately take possession of the person's operator's license if it is then available and shall immediately issue to that person a temporary operator's permit .... The temporary operator's permit serves as the director's official notification to the person of the director's intent to revoke driving privileges in this state and of the hearing procedures under this chapter. The director, ... shall revoke that person's license or permit to drive ... subject to the opportunity for a prerevocation hearing and post-revocation review as provided in this chapter. In the revocation of the person's operator's license the director shall give credit for time in which the person was without an operator's license after the day of the person's refusal to submit to the test except that the director may not give credit for time in which the person retained driving privileges through a temporary operator's permit issued under this section or section 39-20-03.2.... (Emphasis added.)

¶9 In this case, it is conceded Dworshak did not "immediately" receive his temporary operator's permit after the police officer took possession of his driver's license; indeed, a period of twenty-one days passed before Dworshak was issued his temporary operator's permit. We have stated "[t]he jurisdiction of an administrative agency is dependant upon the terms of the statute and must meet at least the basic mandatory provisions of the statute before jurisdiction is established." Schwind v. Director, North Dakota Dep't. of Transp., 462 N.W.2d 147, 150 (N.D.1990). The issue we face, therefore, is whether the failure of the officer to comply with N.D.C.C. § 39-20-04(1), deprives the Department of jurisdiction to revoke Dworshak's driving privileges.

A. Jurisdiction

¶10 In Samdahl, we dealt with a police officer's failure to "immediately" take possession of an operator's license and issue a temporary permit under N.D.C.C. § 39-20-03.1. 518 N.W.2d at 715, 717. The relevant language of § 39-20-03.1(1) and § 39-20- 04(1) is nearly identical; the only difference is that the former is triggered when a person fails one of the various chemical tests to determine blood alcohol content, while the latter is triggered when a person refuses to submit to any testing. Compare N.D.C.C. § 39-20-03.1(1), with N.D.C.C. § 39-20-04(1). We will, therefore, give the same interpretive effect to N.D.C.C. § 39-20-04(1) as we have previously given to the relevant part of N.D.C.C. § 39-20-03.1(1). Cf. Schwind, 462 N.W.2d at 150 (stating "[t]he language in section 39-20-04.1 is consistent with the language in section 39-20-03.1.").

¶11 In Samdahl, the driver, Samdahl, was arrested on February 17, 1993, for driving under the influence. 518 N.W.2d at 715. On February 23, 1993, the state toxicologist report reported an alcohol concentration of .24 percent. Id. It was not until thirty-six days later, on March 31, 1993, that the Report and Notice was served on Samdahl, his driver's license was taken, and he was issued a temporary operator's permit. Id.

¶12 At his administrative hearing, Samdahl argued the Department lacked jurisdiction "because 'immediately' after receiving the toxicologist results, a police officer neither took possession of [his] operator's license, nor issued him a temporary operator's permit as required under § 39-20-03.1." Id. at 717. The hearing officer rejected Samdahl's argument. Id. The district court was persuaded by the argument, however, and concluded § 39-20-03.1 "is a mandatory provision; that extending the time in excess of thirty days is not a minor violation of the statute; and therefore the Department ... is deprived of its jurisdiction." Id. at 716.

¶13 This Court held although Samdahl did not "immediately" receive notice of suspension, the Department retained jurisdiction to suspend his license. We said:

Although the jurisdiction of an administrative agency is dependent upon the terms of the statute and must meet at least the basic mandatory provisions of the statute before jurisdiction is established, the terms of the statute must be construed logically so as not to produce an absurd result. When adherence to the letter of the law would cause an absurd result, we give effect to the legislative intent even though contrary to the letter of the law.

Id. at 717 (internal citation and quotation omitted). We, therefore, agreed with the Department "the language of § 39-20-03.1 regarding the giving of notice of intent to suspend is not jurisdictional." Id. (emphasis added).

¶14 In circumstances similar to Samdahl, we concluded in Schwind an officer's failure to forward to the Department a DUI arrestee's driver's license did not deprive the Department of jurisdiction over the arrestee's revocation hearing. 462 N.W.2d at 150. This Court re...